-Dr. P. Sree Sudha LL.

D (NLSIU)
 POINTS OF DISCUSSION
1. WHAT IS A DOCUMENT?
2. VARIOUS STATUTORY DEFINITIONS OF “DOCUMENT”
3. DRAFTING OF DOCUMENTS: IMPORTANT INITIAL
ASPECTS:
4. DOCUMENTS GENERALLY REQUIRED TO BE
PREPARED UNDER VARIOUS ACTS:
5. IMPORTANT PRINCIPLES AND SUGGESTIONS FOR
GOOD DRAFTING:
6. COMMON FEATURES OF A DOCUMENT:
7. DOCUMENTATION IN CYBER WORLD:
8. DOCUMENTS AND EVIDENCE ACT:
9. OFFENCES RELATING TO DOCUMENTS UNDER INDIAN
PENAL CODE:
10. STAMP ACT (FAQs)
11. WILL
12. SOME IMPORTANT DOCUMENTS & STAMP DUTY
A document is something that furnishes
evidence and shall also include matter
written, expressed or described upon any
substance by means of letters, figures or
marks or by more than one of those means
which is intended to be used or which may be
used for the purpose of recording that
matter.
Statute Section Definition

General S. 3(18) “Document” shall include any matter written,

Clauses Act expressed or described upon any substance
by means of letters, figures or marks, or by
more than one of those means which is
intended to be used or which may be used for
the purpose of recording that matter.
Companies S. 2(15) “Document” includes summons, notice,
Act requisition, order, other legal process and
registers, whether issued, sent or kept in
pursuance of this or any other Act or
otherwise.
Indian S. 3 The word “document” denotes any matter
Evidence expressed or described upon any substance
Act by means of letters, figures or marks, or by
more than one of those means, intended to be
used, or which may be used, as evidence of
that matter.
Information S. 2 “Document” includes an electronic record as
Technology defined in clause (t) of sub-section 1 of Sec. 2
Act, 2000 of The I. T. Act, 2000

Registration Sec “Document” means a document which is

Act 50 legally enforceable.
 A document is intended to be an evidence and has
to stand the test of law. Hence, knowledge of law
is the basic essential requirement. Since the laws
are many and multiple, the concept of super
specialization within some branches involves
specialization in the specific branch of law or
practice.

 The drafting professional should conceive the

sketch or skin of the draft so that no important
aspects or omitted or irrelevant aspects get
admitted randomly.

 The paragraphs in the draft should come in strictly

logical order highlighting the purpose and scheme
of the document.
 Since a document is intended to operate within a
legal framework, use of legal language is
indispensable but it should be to utmost possible
extent precise and accurate. The draft must be
readily intelligible to layman.

 The drafting professional should appreciate and use

precise words to convey what he means to say, what
he does not mean to say and what he need not say.

 Document should be self-explanatory and

unambiguous.

 Prefer separate documents where subject matters are

distinct or applicable rules of law are different.

 Before releasing the draft, it be reconsidered/verified

to satisfy that before it is too late, the draft means
what it intends and terms are clear and definite.
(i) Indian Contract Act:
Agreements, MOUs, guarantees, indemnities, power of
attorneys and all other documents not specifically covered
elsewhere.

(ii) Companies Act:

Memorandum and Articles of Association, resolutions,
minutes, proceedings relating to takeovers, mergers,
scheme of amalgamation, demergers and connected
documentation, Prospectus.

(iii) Indian Partnership Act:

Partnership deeds, reconstitution, resolution, retirement of
partners
(iv) Transfer of Property Act:
Sale deeds, lease deeds, gift deeds, exchange of property,
mortgage, documents, agreement for sale, construction and
development agreements, release deeds.

(v) Intellectual Property rights:

Copyright, relinquishment of copyright, trademarks and its
assignments, patents’ registration and assignment, registration
of designs, franchise agreements, etc.

(vi) Banking transactions, related documentation:

Sanction letters, board resolutions, hypothecation and mortgage
documents, consortium documents.

(vii) Industrial and labor laws:

Appointment, apprenticeship, disciplinary proceedings, charge
sheets, departmental inquiries, retrenchment, schemes for
gratuity, provident fund trust, contract labor, etc.

(viii) Insurance laws:

Insurance policies, assignments and other connected documents
(ix) Arbitration laws:
Arbitration agreement, international arbitration agreements,
notices for arbitration, submissions before arbitrators,
proceedings for challenge to arbitration award, etc.

(x) International agreements:

Agreements between the parties/corporates having different
nationality and governed by different laws, treaties and protocols,
conventions applicable to and governing the situation.

(xi) Testamentary and family laws:

Will, codicil, cancellation of will, family settlement, creation of
trust, family partition, marriage and divorce, intervous and
testamentary succession, adoption deed.

(xii) Other financial transactions:

Commercial papers, related documentation, standby facility,
consequences of default

(xiii) Other miscellaneous documents:

Formation of societies, NGOs, S. 25 companies, financial
collaborations, joint ventures, bonds, agency, consultancy, supply.
(xiv) Pleadings:

The petitions, applications and written submissions

made before any authority who has power to
adjudicate normally comes within pleading. It
contains the material fact on which the party
pleading relies for his claim or defense. Generally,
it follows the following chronology:

 Original application/plaint/suit/petition usually filed

by plaintiff/applicant initiating action.
 Upon notice, the other side has to file Written
Statement/affidavit-in-reply.
 Thereupon the petitioner can file rejoinder in reply
to the contentions in the W.S.
 Affidavit-in-sur-rejoinder by the other side followed
by additional affidavits depending on the issues
involved.
 Affidavits required to be filed

The list is merely illustrative and not exhaustive

 Be clear.. through the document to any person
who has a knowledge of the subject matter.
Prepare scheme of facts and contents you
propose to deal with through a instructions
section.

 Be satisfied.. as to what the document means to

say, does not mean to say and need not say.
Since client may not be as well-versed in law as
you are, be sure as to within what legal
framework such as Sections, Rules, notifications,
if applicable, the document is recognized and
operates.
 Be unambiguous.. Avoid a situation where
you are thinking that you are saying one
thing but really saying more than one.
 Be self-explanatory.. through the
document
 Have separate documents... Documents
which are completely distinct or applicable
rules of law differ
 Use schedules... In respect of matters
which are factual such as description of
property, list of assets, etc. which may
make the document otherwise complex,
but cannot be dispensed with.
 Be logical... So that the risk of omission and
repetition is minimized.

 Use words in the same sense... If in a specific

context, meaning changes, use the word phrase
“unless expressed otherwise or repugnant to the
context or meaning thereof”.

 Avoid passive voice... Unless in particular context,

it makes the meaning more clear, active voice be
preferred.

 Comply with incidental mandatory requirements...

such as stamping of documents, registration,
vetting, etc.
 Avoid self-complacency/unilateralism... be prepared for
vetting, review without necessarily accepting casual and
uncontextual suggestions.
Clarity as to the bare minimum contents you require for
protecting and safeguarding your interest has to be adhered
to.

 Respect precedent and forms... without converting yourself

into a mechanical follower, so that allegations like “non-
application of mind” or “cut and paste” technologist can be
avoided.

 Historical context... When documents are supplemental, be

sure about what the principal document says and what is
intended to be dealt with in supplemental documents.
 In respect of documents having trans-
border effect... be sure as to law of which
country will be applicable and ensure its
compliance.

 Prefer a Chapter of definitions... When few

words are often repeated throughout the
document, it is advisable to have in initial
part a chapter giving definitions of those
words.
In respect of corporate bodies...

When they are a party to the documents, take

additional care of the special provisions
applicable to such party. Thus, for e.g.,
(i) a public limited company has restrictions u/s.
293 of Companies Act for borrowing.
(ii) a public trust cannot mortgage or lease without
prior permission of Charity Commissioner.
(iii) a society has to follow its by-laws,
(iv) Government has to execute the document
through a person authorized by the
governor/President or under departmental rules.
(a) Commencement/title of the deed
Such as conveyance deed, gift deed, joint venture
agreement, etc.

(b) Description of parties to the deed and their legal

character in the transactions.

(c) Recitals:
Usually it begins with the word “whereas” and it
controls and narrates the background of the
operative part of the document. It may narrate the
circumstances and context in which the document
is prepared. Followed by such narrative recital
there may be the reference of agreement which is
intended to be given effect.
(d) Parcels:
A phrase from English drafting which is popularly used refers
to property sought to be conveyed and correct description
thereof.

(e) Operative part:

In background of the recitals, usually the operative part comes
as “in consideration of... The parties hereby agree/convey”,
etc.

(f) Arrangement:
It narrates and elaborates para-wise how the recitals and
operative part have been given effect.

(g) Testimonial:
It is the conclusive part and the usual phrase is “in witness
whereof the said parties hereunto have executed this deed”.

(h) Attestation:
Certain documents require attestation which means person
other that parties will witness the fact of the document being
signed in his/her presence. Such documents are will, sale
deed, lease deed, etc.
 Legislative changes have been brought in to keep
pace with the new millennium when speed is the
hallmark of every individual’s initiative and India has to
keep pace with the global developments. Accordingly,
Information Technology Act, 2000 has been enacted
and amended. It has brought corresponding changes in
Indian Penal Code, Indian Evidence Act, Bankers’ Book
Evidence Act and Reserve Bank of India Act.
The United Nations adopted modal law on electronic
credit named United Nations Commission on
International Trade Law (UNCITRAL). Some of the
important features of this law relevant for our today’s
topic have been summarized below:
 I.T. Act applies to whole of India except when
specifically provided otherwise. In Sec. 2 of the Act,
important and significant terms such as electronic
signature, electronic record, data, computer system,
etc. have been defined.

 Sec. 3 deals with authentication of electronic record

by use of asymmetric crypto system and hash
function which envelop and transform the initial
electronic record into another electronic record. Hash
function is an algorithm mapping or translation of
one sequence into another. Manner of authenticating
digital signature and creation of digital signature also
has been elaborated. Sec. 11 deals with attribution of
electronic records to the originator who sends or
authorizes sending of or sends through an
information system program by originator. If
originator does not stipulate receipt of electronic
record in a particular form, any communication or
conduct to that effect by the addressee is sufficient.
 Sec. 13 stipulates that unless agreed otherwise,
dispatch of electronic record occurs when it enters a
computer resource outside the control of the
originator. (It is like offer and acceptance under the
traditional Contract Act).
 Sec. 65, 66, 67 deals with the offences such as
tampering with computer source documents, computer
related offences and punishment. The punishment is
imprisonment up to 3 years and/or five lac rupees and
for subsequent offence, 5 years and ten lac rupees.

 A statutory authority namely “Controller” has been

constituted u/s. 68 and he has the power to give
directions. The Central Govt. also has powers to issue
directions for interception or decryption of any
information through any computer source.
 Following punishments/penalties have been
prescribed

Sec, Offence Punishment

and/or
penalty
71 Misrepresentation or suppression of fact to the 2 years and one
controller/Certifying authority lac rupees
72 Breach of confidentiality and privacy 2 years and one
lac rupees
73 Publishing false electronic signature certificate 2 years and one
lac rupees
74 Publication for fraudulent purpose 2 years and one
lac rupees
Caution notes:
 Even offences or contravention committed
outside of India irrespective of nationality are
also covered.

 U/s. 76, computer or computer system,

floppies, discs and accessories can be
confiscated.
 Evidence Act applies to all judicial
proceedings where the facts and relevant
facts have to be ascertained and on the basis
of that, conclusions have to be arrived in all
trials/cases both civil and criminal.
 Usually all provisions of Evidence Act do
not apply to Tribunals and such Sections are
inserted in constituting Act of the Tribunal.
 As stated in the initial part, a document,
in case of dispute requires to be tested on
the touchstone of evidence through a court
trial.
 Chapter 5 of Evidence Act deals with
documentary evidence and it may be
appropriate to look at some of the
important provisions:
 Sec. 61: Contents of documents may be
proved either by primary evidence or
secondary evidence.
 Primary evidence means the document
itself produced in the Court.
 Secondary evidence means certified
copies.
 Sec. 64 stipulates that documents must be
proved by primary evidence except when
u/s. 65 the original is shown or appears to
be in power or possession of a person
against whom it is sought to be proved or
its existence, condition and contents have
been admitted by such person or when
original is destroyed or lost or it is a public
document, etc.
 Contents of electronic record may be
proved by producing the computer output
contending the information with all its
material parts and requirements of Sec.
65(b) are satisfied.
 Sec. 67 requires that a document is alleged to be
signed or written by any person’s signature or
handwriting must be proved and onus lies on the
party who asserts it.

 A document required by law to be attested cannot be

used as evidence unless atleast 1 attesting witness
has been examined.

 Sec. 71 says that if attesting witness denies or does

not recollect execution of document, it may be
proved by other evidence. The documents forming
the acts or records of official bodies, tribunals,
sovereign authorities, etc. are called public
documents and a certified copy thereof can be
produced as proof of the contents of “public
documents”.
 Chapter 6 of Evidence Act deals with “Exclusion of oral by
documentary evidence”. U/s. 91, if terms of contract
have been reduced to form of a document or required
under law to be so reduced, oral evidence is not
admissible. However, any fact which may invalidate such
document such as fraud, intimidation, illegality, etc. can
be proved.

 U/s. 99, persons who are not parties to a document or

their representative-in-interest may give evidence of any
facts tending to show a contemperous agreement varying
the terms of the document.

 The responsibility of proving a document is called

“burden of proof’ and it lies on the person who asserts or
who’s case will fail if it is not proved.
 Since ignorance of law is not an excuse and
professionals including chartered accountants have
the occasions to prepare or deal with or certify the
documents, hence a brief reference of the
provisions.

 Sec. 463 of IPC deals with the definition of

“forgery” and in short, it means making any false
document or false electronic record with intent to
cause damage or injury to the public or to any
person. Sec. 464 elaborates false document and
making it dishonestly, fraudulently, etc. An
example from the statute book can enlighten as to
how strict is the law on this point.
 A, without Z’s authority, affixes Z’s seal to a
document purporting to be a conveyance of an
estate from Z to A, with the intention of selling
the estate to B and thereby of obtaining from B
the purchase-money. A has committed
forgery.

 A picks up a cheque on a banker signed by B,

payable to bearer, but without any sum having
been inserted in the cheque. A fraudulently
fills up the cheque by inserting the sum of ten
thousand rupees. A commits forgery.
 U/s. 465, forgery is an offence punishable with 2
years imprisonment.
 More serious offence is u/s. 466 and 467 where 7
years imprisonment for forgery of a court record or
public register is prescribed.
 Sec. 467 deals with forgery of valuable security,
will, transfer of valuable property, receive money,
etc. and such punishment may extend to 10 years.
 U/s. 468, committing forgery for the purpose of
cheating is punishable with 7 years. Forgery to
harm reputation is punishable with 3 years.
 U/s. 471, fraudulently or dishonestly using as
genuine any document which one has reason to
believe that it is false attracts the same
punishment.
 S. 472 deals with counterfeiting any seal or instrument
for committing forgery and punishment is 7 years.
 U/s. 489A, counterfeiting currency note is punishable
with 10 years if done knowingly. Same punishment for
selling, buying or receiving such currency notes or
having reason to believe that it is forged.
 S. 489C stipulates punishment of 7 years for being in
possession of any counterfeit currency note knowing or
with reason to believe that it is counterfeit.
 S. 477A is in the same group of offences and deals with
falsification of accounts with intent to defraud and
punishment is 7 years.
 Sec. 192 deals with fabricating false evidence
for making entry in any book or record or
electronic record or making such document
which may be used as evidence before Court
or arbitrator and if court may be misled by
such evidence and form an opinion then it is
offence of fabricating false evidence for which
punishment is 7 years.
Q. Why so important?
 Even if the document is very accurately drafted, if it is not
duly stamped, it is inadmissible in evidence.

Q. Why Central & State Act operate together?

 It is a concurrent subject. InAdian Stamp Act lays down law
or stamp duty on promissory notes, bill of exchange, Letter
of Credit, foreign bills, etc. In respect of most other
document, the local Stamp Act will apply.

Q. Various methods of stamping?

 Stamp papers/franking/electronic stamping, adhesive stamps
for special purposes such as notary, insurance, share
transfer, etc.
If Act lays down that duty has to be paid in a specific
manner, then it has to be so paid
Q. What is adjudication?
 Power is vested in the stamp authorities to adjudicate
the proper value for stamp duty ignoring what the
parties have shown. For immovable properties, the
“jantri” is applicable.

Q. What is impounding?
 If any public officer (other than a police officer) in
discharge of his duties and who has authority to
receive evidence forms an opinion that document is not
duly stamped, he can impound it and send it to stamp
authority for adjudication.

Q. Can an understamped document still be valid?

 By payment of penalty up to 10 times the deficit stamp
duty and the proper stamp duty, it can be except for
promissory note, etc.
 It is governed by Indian Succession Act and the
capacity to dispose of is governed of by respective
personal laws.

 In case of extreme exigency like person from

airforce, etc. at war, privileged will, i.e. oral will
also permissible.

 Will does not require stamp paper nor registration

is required.

 Will can be modified by a codicil or even cancelled.

 Two attesting witnesses are required.

 Will has to be proved before a Court and this is
called probate. If there is no will then Letter of
Succession has to be obtained.

 Will can be interpreted by applying Armchair Rule.

 Through will, tax planning can be made for future.

 Nomination merely entitles a person to receive the

property but does not extinguish the right of other
heirs.

 In respect of self-acquired property, will can be

made even in favor of persons other than heirs.
Affidavit Rs. 20/-
Development/Promoters Agreement for land 1% of market value of the
property
Equitable mortgage/hypothecation (Article 6)
- for loan up to Rs. 10 crores 0.25% subject to maximum of
1,00,000

- for above Rs. 10 crores Subject to maximum of

(separately for subsequent extension) 3,00,000

Articles of Association (Article 12)

subject to maximum of Rs. 5,00,000/- 0.5%
(A S. 25 company is exempted)
Memorandum of Association of a company (Article
35)
- If accompanies by Articles Rs. 100/-
- Otherwise Same as Articles
Arbitrators Award Rs. 100/-
Cancellation of any document Rs. 100/-
Conveyance/Sale deed (Article 20) Depends on value of
property
Gift (Article 28) Same duty as sale deed for
immovable property
Lease Depends on lease period
Leave & licence 0.5% on the premium
Letter of Allotment (Article 31) 1 rupee for every one
thousand rupees or part
thereof
Letter of Guarantee Rs. 100/-
Mortgage deed
- With possession Same duty as conveyance
- When possession not given Same as per Article 6
Partnership deed 1% of the capital
subject to
maximum of Rs.
10000/-
For alteration/dissolution of partnership Rs. 100/-
Power of attorney Rs. 100/- except
when power to
sell the property
is given to
attorney. In such
case, stamp duty
as per sale deed
THANKING YOU