What Is Drafting?
Drafting, in the legal sense, is the act of preparing legal documents such as agreements, contracts, deeds, resolutions, notices, pleadings, petitions, wills, powers of attorney, and other instruments that have legal significance. The ICSI defines drafting as "the synthesis of law and fact in a language form" — it is the process of translating legal rights, obligations, and business arrangements into written documents that are clear, precise, and legally enforceable.
Drafting covers a broad spectrum of legal documents: (a) transactional documents — agreements, contracts, MOUs, joint venture agreements, (b) corporate documents — board resolutions, minutes, notices, shareholder agreements, (c) litigation documents — plaints, written statements, affidavits, appeals, petitions, (d) property documents — sale deeds, gift deeds, lease deeds, mortgage deeds, (e) regulatory documents — compliance certificates, replies to notices, applications to authorities, (f) personal documents — wills, powers of attorney, trusts.
What Is Conveyancing?
Conveyancing is a specialized subset of drafting that deals specifically with the preparation of documents for the transfer of property — both movable and immovable. The term "conveyance" comes from "convey," meaning to transfer or carry over. Under Section 2(10) of the Transfer of Property Act, 1882 (though not explicitly defined in TPA): a conveyance includes a sale deed, mortgage deed, lease deed, gift deed, exchange deed, and any other instrument by which property is transferred from one person to another.
Conveyancing encompasses: (a) investigating the title (chain of ownership), (b) drafting the transfer document (sale deed, gift deed, etc.), (c) ensuring compliance with stamp duty and registration requirements, (d) completing the transfer formalities (registration, possession, mutation). In England, conveyancing is a specialized profession — in India, it is part of the broader legal and company secretarial practice. India does not have a separate Conveyancing Act; principles are derived from TPA, Registration Act, Indian Stamp Act, and judicial precedents.
Key Differences — Drafting vs Conveyancing
| Feature | Drafting | Conveyancing |
|---|---|---|
| Scope | ALL legal documents | Only property transfer documents |
| Subject Matter | Contracts, resolutions, pleadings, deeds, notices, opinions | Sale deeds, gift deeds, mortgage deeds, lease deeds, assignment deeds |
| Legal Framework | Indian Contract Act, CPC, Companies Act, various statutes | Transfer of Property Act, Registration Act, Indian Stamp Act |
| Registration | Not always required | Mandatory for immovable property transfers above Rs. 100 |
| Stamp Duty | Varies — some documents exempt | Always applicable — ad valorem or fixed rates |
| Title Investigation | Not typically involved | Essential — chain of title must be verified before drafting |
| Relationship | Broader concept | Subset of drafting |
Types of Conveyancing Documents
1. Sale Deed (Conveyance Deed): Transfers ownership of immovable property for consideration (Section 54 TPA). Must be registered.
2. Gift Deed: Transfers ownership without consideration, out of love and affection (Section 122 TPA). Must be registered for immovable property.
3. Mortgage Deed: Transfers an interest (not ownership) in property as security for a loan (Section 58 TPA). Must be registered (except equitable mortgage).
4. Lease Deed: Transfers the right to enjoy immovable property for a specified period in return for rent (Section 105 TPA). Must be registered if term exceeds 12 months.
5. Exchange Deed: Mutual transfer of property between parties (Section 118 TPA). Must be registered.
6. Assignment Deed: Transfer of rights in actionable claims, IP rights, shares, or debts (Section 130 TPA for actionable claims).
7. Partition Deed: Divides jointly-held property among co-owners. Must be registered.
8. Release Deed / Relinquishment Deed: One co-owner gives up their share in favor of another co-owner.
Relationship Between Drafting and Conveyancing
Conveyancing is drafting — but not all drafting is conveyancing. Every conveyancing document must be drafted following drafting principles (clarity, accuracy, completeness, consistency, legal compliance). However, conveyancing involves additional specialized considerations: (a) title investigation before drafting, (b) property description with precise boundaries and measurements, (c) chain of ownership verification, (d) encumbrance certificate analysis, (e) stamp duty calculation based on market value, (f) registration procedure compliance, (g) mutation in revenue records after registration.
A Company Secretary may draft corporate documents (resolutions, minutes, agreements) as part of regular practice. Conveyancing comes into play when the company: (a) purchases/sells property, (b) takes property on lease, (c) creates a mortgage/charge on property, (d) gifts property (CSR-related), or (e) is involved in a merger/demerger involving property transfer.
Legal Framework for Conveyancing in India
Transfer of Property Act, 1882: Governs the substantive law of property transfer — defines sale, mortgage, lease, gift, exchange, and the rights/obligations of transferor and transferee.
Registration Act, 1908: Governs the procedure for registering documents — which documents require compulsory registration (Section 17), optional registration (Section 18), effects of non-registration (Section 49), and procedure for registration (Sections 23-53).
Indian Stamp Act, 1899: Governs stamp duty on legal documents — every conveyancing document must be properly stamped. Deficiently stamped documents are: (a) inadmissible as evidence, (b) liable to impounding by the court, and (c) subject to penalty (up to 10x the deficient amount).
Specific Relief Act, 1963: Provides remedies for breach of conveyancing contracts — specific performance of contracts for immovable property sale (Section 10-14), rectification of instruments (Section 26), cancellation of instruments (Section 31-33).
Skills Required for Conveyancing
A conveyancer must possess: (a) Legal knowledge: TPA, Registration Act, Stamp Act, Specific Relief Act, and relevant state-specific laws. (b) Title investigation skills: Ability to read and analyze title documents, encumbrance certificates, revenue records, and mutation entries. (c) Drafting skills: Precise property description, clear operative clauses, comprehensive covenants, and proper scheduling. (d) Procedural knowledge: Stamp duty calculation, registration procedure, and documentation requirements. (e) Due diligence: Verifying approvals (building plan, OC, CC, RERA), checking litigation status, and confirming tax payments.
Common Errors in Conveyancing
(a) Incomplete property description: Missing survey number, wrong boundaries, or incorrect area — can create title disputes. (b) Deficient stamp duty: Paying stamp duty on the stated consideration when the market/circle rate is higher — attracts penalty and the document may be impounded. (c) Non-registration: Executing a conveyancing document that requires registration but not registering it — the document is legally ineffective. (d) Incomplete title chain: Not verifying the entire chain of ownership — the seller may not have valid title. (e) Not checking encumbrance: The property may have an existing mortgage, attachment, or lien — the buyer inherits the encumbrance.
Disclaimer: This article is for informational purposes only and does not constitute legal or professional advice. While every effort has been made to ensure accuracy based on the latest laws and amendments, readers should consult a qualified professional before acting on any information provided. For expert assistance, contact us.