This article has been written by Soumyadutta Shyam. This article discusses in detail what is a conveyance deed, types of conveyance deed, essential clauses, and the difference between a conveyance and sale deed. This article also covers more practical aspects of conveyancing, like the procedure for registration and the documents required for registration.
It has been published by Rachit Garg.
Table of Contents
Introduction
The word ‘convey’ in its legal sense means transferring, granting, or bequeathing the title of property from one person to another. It implies the transfer of property from one person to another by means of writing and other formalities. The words “conveyance”, “conveyancing”‘ and “conveyance deed” derive from the word convey and mean the mode, act, or instrument by which property is transferred from one person to another.
The word conveyance deed is a broad term and can include any instrument by which movable and immovable property is transferred from one person to another. The purpose of a conveyance deed is to facilitate the transfer of property. It is a legal instrument by which ownership, possession, or title of property is transferred from one person to another.
What is a conveyance deed
A conveyance deed is a legal instrument that is used to transfer the title or ownership of a property from one party to another. It is an instrument through which property is transferred. Conveyance deeds are vital, as they signify the transfer of property from one person to another. Conveyance deed conveys legal title from the grantor (transferor) to the grantee (transferee). The term Conveyance Deed is broad in nature and includes any legal document through which legal title and ownership are transferred, such as gift, lease, mortgage, exchange, sale, etc.
In order to properly understand the meaning of the term conveyance deed, we have to understand the meaning of the terms conveyance, conveyancing and deed.
Conveyance
Conveyance means a mode by which property is conveyed or voluntarily transferred from one person to another through a written instrument and other formalities. The expression is sometimes used to signify (i) the instrument itself; (ii) the act by which the title is claimed or attempted to be passed; and (iii) the effect produced by the operation of such act or instrument on the property and the title to it. According to Section 2(10) of the Indian Stamp Act, 1899, conveyance comprises a conveyance on sale and every instrument by which property, whether movable or immovable, is transferred inter vivos and which is not specifically provided by Schedule I of the Act. The term can mean any instrument by which title to the property is conveyed.
In Narandas Karsondas v. S.A Kantam & Anr (1976), it was observed that the combined effect of Section 54 of the Transfer of Property Act, 1882, and Section 17 of the Indian Registration Act, 1908 is that a contract for sale concerning immovable property of the value of more than one hundred rupees without registration cannot nullify the equity of redemption. In India, the mortgagor’s right to the property is rendered void solely on the execution of conveyance and registration of the transfer of mortgagor’s interest through a registered instrument. The bestowal of the power to sell without court’s intervention in a mortgage deed by itself will not deprive the mortgagor of his right to redemption. The extinction of the right to redemption has to be after a deed confers such power. This case clearly highlights the importance of conveyance and registration when it comes to immovable property in India.
Conveyancing
Conveyancing means the act of transferring titles to property from one person to another and the practice of preparing deeds for execution. The subject-matter of conveyance can be regarded as the law relating to the transfer of property and rights which are based on the nature of property, where any document is used for the purpose. Conveyancing has been interpreted as comprising all those transactions by which legal rights are created and legal relations between persons in relation to property are brought into existence. It means the transfer of property inter vivos, i.e, between two legal persons. The main object of conveyancing is to make sure that the property is transferred in a legal way, along with the appropriate documentation.
Conveyancing can be defined as the art of drafting deeds by which any right, title, or interest in corporeal immovable property is transferred from one party to another. In England, a class of trained lawyers have specialised as conveyancers, they have expertise in drafting deeds for transferring property. Conveyancing has been prescribed as a compulsory subject by the Bar Council of India. It is expected that in the coming years, lawyers will be better equipped and trained for the task of conveyancing.
Deed
A deed is a written document that transfers title to or an interest in property from one person to another. It is signed by the person transferring the property (grantor), conveying the title and ownership to another individual or legal entity (grantee). Since it is a written instrument, it serves the purpose of confirming or affirming the owner’s right or interest in the property. It serves as the legal proof of ownership and is an essential part of any transaction of immovable property. According to Legal Glossary, Government of India, deed means an instrument in writing that is signed and usually sealed or some other comprehensible representation of words on parchment or paper purporting to affect some legal disposition.
Examples of deeds include sale deeds, lease deeds, mortgage deeds, gift deeds, deeds of exchange, partition deeds, wills (Deed) and trust deeds among others.
In England, two kinds of deeds are recognised : (i) deeds poll and (ii) indentures. Deeds poll are unilateral in nature being executed by one party alone, and are drafted in person. There was a time when the top was polled and thus, the name. Indentures are executed by two or more parties and are usually drawn by third parties. The practice of indenting or cutting the top of the document has become outdated, but the term is still used.
Thus, conveyance deed means an instrument or document by which title or interest in property is transferred from one party to another. It is an important legal instrument that lays down the terms and conditions surrounding the transfer of property. The importance of conveyance deeds was highlighted in the landmark judgement of Suraj Lamp and Industries Pvt.Ltd. v. State of Haryana (2011) . In this case, the Supreme Court held that sales or transfers of immovable property through General Power of Attorney Sales (GPA Sales), or Sale Agreement/General Power of Attorney/ Will transfers (SA/GPA) are not legal and are invalid. The court noted that these kinds of transactions have developed to avoid prohibitions/conditions regarding certain transfers, to avoid payment of stamp duty and registration charges, to avoid payment of capital gains on transfers, and to invest black money. It was observed that a transfer of immovable property by way of sale can only be done by a deed of conveyance. In the absence of a deed of conveyance duly stamped and registered as required by law, no right, title, or interest in an immovable property can be transferred. A contract of sale that is not a registered deed of conveyance will not satisfy the requirements of Sections 54 and 55 of the Transfer of Property Act,1882 and will not transfer any title or transfer any interest in an immovable property. An immovable property can only be transferred or conveyed by a registered deed of conveyance.
In Duncan Industries Ltd. v. State of U.P & Ors (2000) , a conveyance deed was executed by a company named ICI India Ltd. in favour of Chand Chhap Fertilizer and Chemicals Ltd. Upon presentation for registration, the Registrar referred the document under Section 47-A (2) of The Indian Stamp Act, 1899, to the Collector, claiming non-compliance with Section 27 of the Act and requested for the proper valuation to be made and penalty payable on the document. The Collector after an inquiry, levied a stamp duty of Rs.37,01,26,832/- and a penalty of Rs.30,53,167/-. The aggrieved party challenged the Collector’s order in a Revision under Section 57 of the Act before the Chief Controlling Revenue Authority. The said authority partly allowed the challenge, set aside the penalty and slightly altered the stamp duty levied by the Collector. After the order, the stamp duty payable on the conveyance deed was Rs.36,68,08,887/-. The appellant challenged the order before the High Court unsuccessfully.
The Supreme Court upheld the High Court’s finding that the plant and machinery in the conveyance deed are immovable properties. The appellant’s argument that a mere reference to an earlier agreement does not amount to incorporation of the terms and conditions of an earlier transaction or intention of the parties was rejected. The Court found no reason to interfere with the High Court’s acceptance of the valuation made by the authorities.
Purposes of a conveyance deed
A conveyance deed is an important legal document that serves many crucial purposes. The main purposes of conveyance deeds are as follows:-
1. In a legal dispute, a conveyance deed serves as evidence of ownership and title.
2. It provides validation that the process of transferring a property between the transferor and transferee has been completed.
3. It transfers the title to the property from the transferor to the transferee.
4. It serves as a proof of ownership.
5. It shows that the property is free from any liens, claims, mortgages, charges, or any other encumbrances.
6. It provides proof that the buyer is receiving a free and clear title from the seller.
7. A properly executed and registered conveyance deed provides legal protection and transparency for all property related transactions.
Types of conveyance deed
Conveyance deeds can be classified into the following main types:-
Conveyance deed on freehold property
The status of a property can be changed into freehold property by the concerned local or state authority. A buyer with a conveyance deed on freehold property has full authority and rights over the property. The seller provides the conveyance deed to the buyer as the final legal document.
The owner of a freehold property has absolute ownership and clear title to the property. It is free from any encumbrance. The owner has the right to transfer, gift, and lease the property.
Deemed conveyance deed
In case, conveyance does not take place under usual procedure or if the developer declines to execute the conveyance deed, then deemed conveyance can be an option. Deemed conveyance mainly takes place in the transfer of an interest in residential and commercial properties. It takes place when the promoter or developer of the project outright refuses to sign the conveyance deed. In such circumstances, the court can sign the same on behalf of the seller and note it in the government records. In a situation, where the promoter, developer, or owner of the building does not transfer the ownership of the property, an application can be made to the Registrar of Housing Societies to transfer ownership of the concerned premises. This kind of transfer is made through a legal instrument called the deemed conveyance deed.
Conveyance deed on leasehold property
A conveyance deed on a leasehold property provides rights to the property; this, however, excludes rights to the land. In contrast to freehold properties, leasehold properties are owned for a stipulated period of time, generally for a number of years, after which the ownership of the property reverts back to the landlord.
Leasehold property is only leased for a fixed period. Any modifications or changes to the property can only be made with the owner’s permission. The transferee in this case is neither the owner of the property nor the land on which the property is located.
Conveyance deed on property subject to mortgage
In the case of property transferred by conveyance deed subject to mortgage, the property owner is not permitted to reside on the property premises permanently. The owner, however, can enter its premises and use the property from time to time.
In order to understand what property is subject to a mortgage we need to understand the concept of mortgage. Section 58(a) of the Transfer to Property Act, 1882 defines mortgage as a transfer of an interest in specific immovable property in order to secure payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of a debt that may give rise to pecuniary liability. It involves a transfer of interest in specific immovable property. The object of such transfer is that the property stands as security for the repayment of a debt or loan.
In conveyance deed subject to mortgage, the fact that the property was mortgaged must be mentioned. The owner’s right to use the property is subject to the covenant for redemption and other terms of the mortgage deed.
Gift deed
A gift deed is a legal instrument that signifies the transfer of an immovable property by gift. The donor (transferor) can freely transfer certain movable or immovable property to the donee (transferee) through a gift-deed. It is valid only when made voluntarily and without consideration, out of natural love and affection.
According to Section 122 of the Transfer of Property Act, 1882, a gift is the transfer of certain movable or immovable property made voluntarily and without consideration, by the donor (transferor) to the donee (transferee) and accepted by or on behalf of the donee. The gift must be accepted by the donee while the donor is still alive.
Section 123 provides that irrespective of the value of the property, the transfer must be effected through a registered gift deed signed by or on behalf of the donor and attested by at least two witnesses. In Mallo v. Bakhtawari (1985), a suit was filed by an illiterate lady for the cancellation of a gift deed executed by her on the ground that it was acquired by fraud. The donee did not produce any attesting witnesses. It was held that the attestation of the gift deed was not proved. An admission by the executant donor of a signature on the deed does not dispense with proof of its attestation. So that the gift deed in this case did not confer any right on the donee in respect to the property in question.
In Samrathi v. Parsuram (1975), it was held that if the gift deed is handed over to the donee or someone else on his behalf, there is adequate acceptance of the gift. In the case of Balwant Singh v. Mehar Singh (1974), it was held that if the donee signs the gift deed at the time of execution and at the time of presentation to the Sub-Registrar, his signatures must be held to be appended to the token of having accepted the gift. Section 123 does not mention any essentials of gift, the term gift has been defined in Section 122 of the Act.
The gift deed must mention the name and other personal details of the donor and the donee. A description of the property, which is the subject of the gift, should also be mentioned. In the recital section, it must be declared that the donor is making the gift out of love and affection for the donee, as well as the relationship between the donor and the donee. It must be signed by the donor and the donee, as well as signed by two attesting witnesses.
Deed of exchange
An instrument through which an exchange or mutual transfer of ownership of property is affected is called a deed of exchange. The registration of a deed of exchange is compulsory when one of the two properties involved in exchange is above rupees one hundred. In Srihari Jena v. Khetramohan Jena (2002), it was held that a deed of exchange executed with the intention of compromising some criminal cases between the parties is hit by Section 23 of the Indian Contract Act, 1872 and therefore, is not valid.
Exchange has been defined under Section 118 of the Transfer of Property Act, 1882 as a mutual transfer of ownership of one thing for the ownership of another, it may be money on both sides or property on both sides. A transfer of property in an exchange shall be regulated by the provisions of the sale of property.
In an exchange deed, the name and other personal details of both parties should be mentioned. In the recitals portion, it should be declared that both parties are the sole and absolute owners of their respective properties; a declaration that both properties are free from encumbrances and the valuations of each property should be made. The location of each of the properties to be exchanged and the intention of the owners to exchange their properties should be stated. The deed should be signed by both parties and two witnesses. There should be two schedules (generally mentioned as ‘Schedule I’ and ‘Schedule II’) describing the location and boundaries of the properties.
Relinquishment deed
A relinquishment deed is a legal instrument that transfers the ownership of a property from one person to another. It is generally used in cases where the co-owner or legal heir transfers their share of the property to another co-owner or legal heir. In this kind of transfer, the executants or releasors relinquish their claim to another co-owner or legal heir.
The members of the Hindu Undivided Family (HUF) may give up their rights in the immovable asset of the joint family by relinquishing their ownership. A legal heir can lawfully convey ownership of the inherited property to other legal heirs through a relinquishment deed. This kind of transfers are generally made out of love and affection by family members or relatives . As far as relinquishment of property is concerned, it can only be made to a co-owner. It cannot be made to a third party.
In a relinquishment deed, the transferor, or party relinquishing the property, is called the relinquishor/releasor and the transferee, or the party to whom the property is relinquished, is called the releasee. The relationship between the parties is usually mentioned. A declaration is also made by the releasor that they release all rights, titles, claims and demands on the property in favour of the releasee. The schedule of the property mentions the location and boundaries of the property.
In Tripta Kaushik v. Sub-Registrar, Delhi & Anr and Ramesh Sharma V. Government of NCT, Delhi & Anr (2020) the Delhi High Court dealt with both the cases together as they involved similar questions of law. In this case, the court laid down the test to determine whether an instrument can be considered a relinquishment deed or release deed, or gift deed. The nature of the instrument should be considered based on the following criteria :-
1. In ascertaining whether the document is a release/relinquishment or gift, the nomenclature used to describe the document or the wording that the party chooses to use is not a determining factor. The actual character of the transaction intended by the executants must be understood.
2. Determination of the character of the document is not a pure question of law.
3. When a co-owner renounces his/her right to a property in favour of another co-owner, words like consideration and transfer do not affect the true nature of the transaction.
4. Co-ownership may not always be through inheritance, but can also be through purchase.
5. Where the relinquishment of the right of the co-owner is only in favour of one of the co-owners and not in favour of all, the document would be gift/conveyance.
In Kothuri Venkata Subba Rao v. District Registrar of Assurances, Guntur (1986) , four of ten persons who jointly purchased two plots of land for constructing a theatre, executed four relinquishment deeds in favour of the remaining six members. The Court observed that in determining the character of an instrument, neither the nomenclature nor the language the parties choose to employ in drafting the document are decisive. The decisive factor is the actual nature and character of the transaction. Even if consideration exists, it can still be treated as a deed of release. The Court held that recitals of the documents clearly show the intention of the parties or the purpose for which and the circumstances under which the transaction came into being. The warranty of title stated in the documents clearly shows that they are not deeds of release. The Court further held that each document in this case was a deed of conveyance on sale and not a deed of release.
In Tahira Begum v. Sumitar Kaur (2010), the facts were such that the brothers of the petitioner executed and registered a deed of release/relinquishment in favour of the petitioner. Earlier in 1994, an oral gift was made and subsequently, a registered deed of declaration in 1997 was made in favour of her. These facts meant that the petitioner became the owner of the property, at least by adverse possession. The Court refused to accept the title of the petitioner on the basis of the relinquishment deeds. However, the Court found the petitioner to be the owner of the premises in question.
Essential clauses in a conveyance deed
A conveyance deed has the following clauses :
Title
The title of the deed should be mentioned at the top of the document, centrally aligned. The title of the deed states the main purpose of the instrument. The title of a conveyance deed should be either ‘Conveyance Deed‘ or ‘Deed of Conveyance‘. The title signifies the nature or purpose of the deed.
Description and date of the deed
A conveyance deed begins with the description “THIS DEED OF CONVEYANCE”. It is an established practice to begin a deed by giving it a name, for example, “THIS DEED OF SALE” or “THIS DEED OF MORTGAGE,” etc. The description of the deed is generally written in capital letters to put emphasis on the name of the deed. It may be noted that the nomenclature by which the deed is worded is not definitive. Thus, the use of words like release, relinquish, assign or transfer in a deed cannot ascertain the nature of the deed. The substance of the transaction has to be examined. The question in each case is one of the determination of the real character of the transaction, to be ascertained from the provisions of the deed viewed in light of the surrounding circumstances.
In Brijraj Nopani v. Pura Sundary Dasee (1914), it was observed that the meaning of the deed is to be decided by the language used, interpreted in its natural sense. The deed in this case stated in plain words that whatever right or title the Vendors possess should support the conveyance. It is a well established rule that the substance of a deed should be decided by the language construed in its natural sense.
It is a convention to state the date on which a deed is executed. A conveyance deed must state the date on which it is executed. According to the Indian Registration Act, 1908 a deed shall take effect from the date of its execution. Where, however, a deed is executed by several parties on different dates, the last of such dates shall be taken into account.
Parties to the deed
The date is followed by a description of the names of the parties to the conveyance deed. The names and descriptions should be given correctly. The description includes names of the parties, parentage, addresses, occupation, etc. Important details such as the Aadhar number and PAN number should also be mentioned for the proper identification of the parties. The question as to who are the necessary and proper parties to the deed would depend upon the circumstances of each individual case.
The parties may be described as vendor (transferor) and purchaser or vendee (transferee), seller (transferor) and buyer (transferee), and allottee (transferee). The nomenclature used to describe the parties may depend on the nature or type of the conveyance deed and the preferences of the parties. The term used to describe the parties should generally include all the heirs, legal representatives, executors, administrators, assignees, and successors in the interest of the parties.
Recitals
Recitals in a conveyance deed should mention the seller’s title and ownership of the property, as well as a brief description of the location and other details of the property to be transferred. It should also mention the purpose of the deed. Recitals start with the word “WHEREAS” and in the next paragraph, “AND WHEREAS”. Recitals are of two kinds:-
(i) Narrative Recitals, which set out the transferor’s title to make the transfer; and
(ii) Recitals, which describe the purpose of the deed.
The recitals must be exactly consistent with the operative part of the deed.
Description of the Property
A conveyance deed should accurately describe the location and other details of the property. It should mention the exact location of the property, such as locality of the town, city or village; District and State; and the Tehsil/Taluka/Mandal/Block/Subdivision/Circle in which it is located. The deed should also mention the plot numbers, survey numbers, and other relevant details about the property. The exact measurement of the property should also be stated in square yards or square feet.
Testatum
After the recitals comes the testatum, which is a witnessing clause that begins with the words: “NOW THIS DEED WITNESSES THAT” , “NOW THIS DEED WITNESSETH AS FOLLOWS”, or “NOW THIS DEED WITNESSES AS FOLLOWS”.
The testatum is considered the starting point of the operative part of the deed.
Consideration
The conveyance deed should state the consideration mutually agreed upon between the parties. This may be a monetary amount or any other type of consideration, such as assumption of debt liability or an exchange of property. Consideration is the compensation given by the party contracting for the order. It is a promise, a return, or quid pro quo, something of value which is received by the promisee as incentive to keep the promise. A valuable consideration, in law, may consist either in some right, interest, profit, or benefit resulting to one party, or some forbearance, loss, or responsibility given or undertaken by the other party. As per Section 27 of the Indian Stamp Act, 1899, the consideration if any and all other facts and circumstances affecting the chargeability of the instrument should be fully and truthfully stated in the deed. However, there are some specific types of conveyance deeds for which consideration is not a necessary element.
In Himalaya House Co. Ltd.,Bombay v. Chief Controlling Revenue Authority (1972) , it was held that it is incumbent upon the parties to the instrument to fully and truly set forth therein, the consideration (if any) and all other facts and circumstances affecting the chargeability of such instrument with duty or the amount of duty with which it is chargeable, failing which penalty as prescribed under Section 64 of the Act can be imposed, but the revenue authorities are not conferred with any power to initiate an independent inquiry of the value of the property so conveyed for determination of duty which is chargeable.
Granting Clause
This clause states that the seller (transferor) is transferring the property rights in favour of the buyer (transferee). It generally uses words such as conveys, warrants or grants, sells and conveys. The granting clause is a part of the clauses in an instrument of conveyance that in effect transfers the grantor’s interest (owner’s interest) to the grantee (buyer). It is one of the important clauses in a deed, also known as words of conveyance.
Covenants and Guarantees
It is customary for the transferor to include certain undertakings or warranties about the property’s conditions, legal status, and ownership in a conveyance deed. The transferor must declare that the property is free from all encumbrances, charges, mortgages, liens, court attachments, and litigation. The transferor should also declare that they have full power and absolute authority to sell the property.
Habendum
This explains the kind of ownership being transferred. It specifies the rights along with the restrictions in relation to the property. The Habendum clause defines the size and quantum of the property to be acquired by the transferee and is generally introduced by the words “TO HAVE AND TO HOLD”. According to Sir Edward Coke, the purpose of habendum is twofold – First, to rightly name the feoffor and feoffee, and second, to comprehend the certainty of the lands or tenements to be conveyed by the feoffment.
Delivery and Acceptance
A conveyance deed should incorporate a clause that confirms the delivery of the deed from the grantor to the grantee. A deed conveying property comes into effect and transfers ownership to the named grantee when the deed is delivered.A mere signing of a deed by the grantor/owner is not enough to divest the owner of his interest in the property. The delivery and acceptance clause has two purposes, to signify the grantor’s intent to convey title and the grantee’s intent to accept it. While the grantor may want to transfer title when they hand over the deed, if the grantee refuses to accept the deed, the deed will not be deemed to be delivered.
Testimonium
Testimonium affirms the fact that the parties to the deed have signed the deed. It is usually inserted in the following form :
“IN WITNESS WHEREOF the parties hereto have signed this deed on the date first above written.”
Testimonium is not a necessary part of the deed but the customary practice of inserting it in a deed may be advisedly continued.
Signature and Attestation
At the end, the deed should bear the signatures of the parties and also those of attesting witnesses. This should be done in all cases, whether legally required or not. Attestation proves that the signature of an executing party has been attached to a document in the presence of a witness. It does not involve the witness in any knowledge of the contents of the deed or affect him with the notice of its provisions. If it is shown that the witness knew more about the nature of the deed, more value may be given to his attestation, but by itself, it would neither create estoppel nor imply content.
Schedule of the property
There should be a schedule attached at the end of the deed describing in detail the location and measurement of the property. The schedule should mention in detail the town, city or village in which the property is located, the district and state, the tehsil/taluka/mandal/block, the survey number, and the plot number. The schedule should also properly establish the boundaries of the property.
Difference between conveyance deed and sale deed
Though sometimes the terms conveyance deed and sale deed are used interchangeably, it is important to note that there are significant differences between the two. Some of the important points of distinction between conveyance deed and sale deed are as follows:-
| Conveyance deed | Sale deed |
| 1. Conveyance deed transfers property rights and ownership from one person to another and may not always be for consideration. | 1. Sale deed is required when a property is sold to the buyer for a mutually agreed upon consideration between the buyer and the seller. |
| 2. Conveyance deed can transfer the legal title from one person to another in case of gift, exchange, lease, mortgage, etc. | 2. Sale deed transfers the legal title in case of sale, i.e, the seller transfers his property to the buyer for a specific amount of money. |
| 3. Conveyance deed is wider in scope, it includes various types of property transfers. It includes transfers of property through gift, exchange, lease, relinquishment, sale, etc. | 3. Sale deed is a legal instrument that transfers in ownership and title from the seller to the buyer. It is a type of conveyance deed. |
| 4. Consideration is not mandatory. It may or may not be there. | 4. Consideration is necessary. The buyer has to pay the consideration amount to the seller to ensure the transfer of property. |
| 5. The transfer of rights over the property may be for a limited period in some cases. | 5. The transfer of rights over the property is permanent and forever. |
Registration of a conveyance deed
A conveyance deed must be properly stamped and registered in order for it to be valid. Registration of a conveyance deed is mandatory. It should be registered at the Sub-Registrar’s office, within whose jurisdiction the property is located. Without a registered conveyance deed; no right, title or interest in an immovable property can be legally transferred. The stamp duty should be properly calculated based upon the valuation of the property.
Procedure for registration of a conveyance deed
Only a deed of conveyance duly stamped and registered can validly transfer title and ownership from one person to another. The procedure for registering a conveyance deed is as follows:-
Drafting the conveyance deed
The procedure for registration starts with drafting the conveyance deed. The deed should include details of the transferor and transferee, description of the property, consideration (if applicable), and other terms and conditions followed by signature and attestation. Clear and unambiguous terms should be used to avoid confusion and disputes.
Payment of stamp duty
Prior to registering the conveyance deed, the applicable stamp duty must be paid. Stamp duty varies from state to state and is usually calculated based on the value of the property. Consulting a legal professional or checking at the registrar’s office is advisable for knowing about the amount and method of paying the stamp duty. Stamp duty can also be paid online nowadays.
Notarization
In certain jurisdictions, a conveyance deed may be required to be notarized by a notary public or other authorised officer. Notarization requires verifying the identities of the parties to the deed and confirming that the documents presented are authentic.
Visiting the sub-registrar’s office
After the conveyance deed is drafted, executed, and notarized (if applicable), the buyer and the seller should visit the local Sub-Registrar’s office to register the deed.
Submission of the document
The conveyance deed should be submitted along with the required documents at the Sub-Registrar’s office. The required documents commonly include identity proof (for example: Aadhaar or PAN card), proof of address, relevant property documents, and payment receipts of stamp duty.
Verification
The Sub-Registrar’s office will check the documents for accuracy. A verification process may also be conducted to make sure if the property title is clear and it is free from any encumbrances or other legal issues. After verification is complete, the document will be registered, and the ownership transfer will be noted in the official records.
Collection of registered deed
After the conveyance deed has been registered, it can be collected from the Sub-Registrar’s office. The registered copy of the deed is the legal proof of the ownership and should be safely kept for future reference. Scanned copies of the registered deed can also be downloaded from the official website of the registration department of the state.
Documents required for registration of a conveyance deed
The documents required for registering and obtaining a Conveyance deed or further documentation are as follows:-
A registered agreement for sale of property with the seller
One of the important documents required for a conveyance deed is an agreement for sale with the seller, duly registered at the local sub-registrar’s office. An agreement for sale is executed between the seller and the buyer before drafting the conveyance deed or sale deed. It includes the terms and conditions for sale and the rights of buyers and sellers. It is only after the Agreement for Sale is signed, the conveyance deed or sale deed is executed. Agreement for Sale must be notarized and registered. It includes details such as details of the seller (transferor) and buyer (transferee), the agreed amount of consideration, if any, payment schedule (if applicable), amount of earnest/advance money (if applicable), default penalty for the buyer and seller, and a declaration that the property is free from all encumbrances.
Mutation entries or property card
Mutation entries are another important record required for conveyance deeds. The relevance of mutation entries lies in the fact that they are useful for establishing clear title to the property. Mutation entries are entries in revenue records that signify that there has been a transfer of title of property. They are records kept by the revenue department.
Mutation entries are relevant as far as determining the title is concerned, but they are not the sole determining factor. However, it must be remembered that mutation entries neither create any title nor are a conclusive proof of ownership. The Supreme Court in Smt. Bhimabai Mahadeo Kambekar (D) Th. LR v. Arthur Import and Export Company (2019) , said that it has been consistently held that mutation of a land in the revenue records does not create or extinguish the title over the land, nor does it have any presumptive value on the title. It just allows the person in whose favour mutation has been ordered to pay the land revenue for that land.
In the recent case of Jitendra Singh v. State of M.P (2021) , the Supreme Court held that mutation entry does not grant any right, title, or interest in favour of the person, and it is recorded only for fiscal purposes.
Property card is an electronic document that holds important information related to property. This includes particulars of all past transactions for a plot of land, previous ownerships, survey numbers, village name, lease rent, etc. It was launched by the Government of India to increase transparency in land administration and bring clarity on the ownership title on a piece of land in particular.
Location plan and Survey plan
The location plan is an essential document required for conveyance deed. It represents the projected development in relation to the surrounding area. The location plan needs to be reviewed by town/city planning authorities to make sure that it does not breach any regulations laid down by them.
A survey plan is another essential document required for conveyance deeds. It gives a precise measurement of a parcel of land and also describes it. A survey plan is quite like a map of a property, as it gives a clear view of the location where the property is situated. Survey numbers can be accessed through the official website of the revenue department of the state.
Approved plot plan and structure plan from appropriate authority
A plot plan is a detailed blueprint that shows the specific layout of a property. It provides a view of the entire piece of land, including all its structures, features and improvements.
A structure plan is a graphic representation to guide the development of an area by describing prospective developments, land use patterns, areas of open space, the layout, and other key features that influence how the effects of urban and suburban development should be managed. It contains maps, plans, and representations of a proposed layout. The main purpose of structure plans is to establish aims and policies for the general progress of an area.
Commencement certificate, completion certificate and occupancy certificate
There are three important documents that are crucial for a conveyance deed, especially after The Real Estate (Regulation and Development) Act, 2016 came into force.
A commencement certificate also called a building permit or construction permit, is issued by the competent authority to permit the promoter to begin development works on an immovable property in accordance with the sanctioned plan.
A completion certificate is issued by the competent authority certifying that the real estate project has been developed and completed in compliance with the sanctioned plan, layout plan and specifications, as approved by the competent authority under the local laws.
An occupancy certificate is an important document that verifies that a building has been constructed in accordance with the approved plans and complies with all necessary safety norms and regulations. It is issued by the competent authority under local laws certifying that all civic amenities, such as water, sanitation and electricity, have been provided to the building.
List of Owners
A comprehensive list of all the owners, along with their names, addresses, occupation, age and parentage should also be submitted for a conveyance deed.
Stamp duty payment receipt
Stamp duty can be paid both by online and offline methods in India. Stamp duty is a type of tax payable by the property buyer. The amount of stamp duty required to be paid varies from state to state. The e-challan or payment receipt of stamp duty is one of the most important documents required for conveyance deeds.
Power of attorney and development agreement
If the power of attorney or development agreement, or general power of attorney, was executed during the process of the transaction of the property, it must also be mentioned in the conveyance deed along with their proper registration number.
A power of attorney is a legal instrument executed by the principal in favour of the attorney-in-charge or legal agent. It empowers the attorney-in-charge or legal agent to act on behalf of the principal. It is a formal authorization to represent or act on another’s behalf in transactions relating to property, business, or some other legal matter. In India, provisions relating to power of attorney can be found in the Powers of Attorney Act, 1882. Section 2 (21) of the Indian Stamp Act, 1899, defines power of attorney as any instrument empowering a specified person to act for and in the name of the person executing it.
Power of Attorney can be of two types-(1) general power of attorney (2) special power of attorney. By general power of attorney the principal vests a wide range of powers in the attorney; such as handling bank transactions, dealing with property related matters, managing business transactions and representing in legal matters. A special power of attorney vests the attorney with specific powers, such as selling or buying a property, representing in a particular case, etc.
Development Agreements cum General Power of Attorney (DAGPA) are useful in situations where the owner of potentially profitable land may not have sufficient knowledge regarding construction or may not have the required financial capability for starting a real estate project. Whereas, a developer may have sufficient funds and expertise but not land at prime locations. This is where a development agreement comes in handy, by virtue of the development agreement, the land owner receives ready benefits from their lands, while the developer benefits from developing the land and making a profit out of it without buying the land. The Development Agreement acts as a licence mentioned under Section 52 of the Indian Easements Act, 1882 for the developer to enter the land owner’s property and start construction. The General Power of Attorney authorises the developer to construct and market the property. However, it must be kept in mind that no title transfer takes place in the development agreement. The development agreement has provisions regarding the duration of the project, the duty of the developer to prepare plans, estimates and designs, the developer’s duty to obtain necessary permissions from authorities, etc.
Draft of conveyance deed
The draft of the conveyance deed is actually the chief requirement for registering a conveyance deed. The deed should be drafted in clear and unambiguous terms. The description of the parties and the property should be carefully drafted. Nothing should be omitted or added randomly. The draft of the conveyance deed should ideally be prepared by a lawyer who has knowledge and expertise in drafting legal instruments.
Cancellation of a conveyance deed
A Conveyance deed cannot be cancelled by the Registrar or Sub-registrar once it has been registered or executed. However, under Section 31 of the Specific Relief Act,1963 an aggrieved person may file a suit to have the deed cancelled if they feel that the instrument, if left outstanding, can cause serious injury. The aggrieved person may sue to have the deed adjudged as void or voidable. The Court may, in its discretion, decide the case and order it to be delivered and cancelled. If the instrument has been registered, the Court shall also send a copy of the decree to the officer in whose office the instrument was registered. The officer shall accordingly note on the copy of the instrument contained in his books that the instrument has been cancelled.
In Latif Estate Line India Ltd. v. Hadeeja Ammal (2011) a transfer through sale was made absolute by the transfer of property from the transferor to the purchaser. The Court said that such a transfer cannot be cancelled unilaterally by the vendor by executing a cancellation deed. Such a deed could not be accepted for registration. Cancellation of a sale deed can only be ordered by the court under Section 31 of the Specific Relief Act, 1963.
Under Section 32 of the Specific Relief Act, where there are different rights and obligations, the Court may cancel a part of the deed while allowing the rest to remain operable.
Conclusion
A conveyance deed is a legal instrument used to transfer title and ownership of a property from one person to another. The basic purpose of a conveyance deed is to enable the transfer or conveyance of property. It must be registered and stamped in order for it to be valid.
A conveyance deed is broad in scope. It includes several kinds of ways in which people can convey the legal title or ownership of a property from one person to another. The significance of conveyance deed lies in the fact that it assures legal ownership, provides proof of conveyance and enforces property rights. It signifies that the transferor has conveyed all authority and ownership regarding a property to the transferee.
Frequently Asked Questions (FAQs)
1. What is a conveyance deed?
A conveyance deed is a legal instrument that is used to transfer the title or ownership of the property from one party to another party. It is an instrument through which property is transferred. A conveyance deed conveys legal title from the grantor (transferor) to the grantee (transferee).A conveyance deed is broad in nature and includes any legal instrument through which legal title and ownership are transferred, such as gift, lease mortgage, sale, etc.
2. What is the difference between sale deed and conveyance deed?
A conveyance deed is broader in scope and includes various types of property transfers such as gifts, exchanges, leases, relinquishments, sales etc. Sale is a legal instrument that transfers ownership from the Seller to the Buyer. It is a type of conveyance deed. In conveyance deed, consideration is not mandatory, it may or may not be present. However, in case of sale, consideration is mandatory.
3. Can a property be transferred through Agreement of Sale, or is conveyance deed necessary?
As ruled by the Supreme Court in Suraj Lamp Case, property cannot be transferred validly through an Agreement of sale, it can only be transferred through a deed of conveyance duly stamped and registered.
4. Is registration of conveyance deed compulsory?
Yes, a conveyance deed must be registered in order for it to be valid.
References
- Dr. G.P Tripathi ; The Transfer of Property Act ; Central Law Publications
- Dr. K.K Srivastava ; The Law of Pleadings, Drafting and Conveyancing ; Central Law Agency
- https://legal-dictionary.thefreedictionary.com/Conveyance
- Legal Glossary | Legislative Department | India
- What Is A Deed Of Conveyance? | Quicken Loans
- What Is a Conveyance Deed? (courthousedirect.com)
- What is conveyance deed? What its its purpose? (housing.com)
- What is a Conveyance Deed? – Meaning, Importance & Format (navi.com)
- Know your rights when seller is not signing your property transfer papers. Know about Deemed Conveyance. (legalkart.com)
- Conveyance Definition & Meaning – Merriam-Webster
- INTRODUCTION TO CONVEYANCING (legalbites.in)
- What Is Conveyancing? All Stages of the Process Explained (fortunly.com)
- Legal Dictionary | Law.com
- https://legaldictionary.net/deed/
- https://fitterlaw.com/insight/legal-dictionary/define-deed/
- Relinquishment Deed – Format, Benefits, Documents & Process (navi.com)
- What-is-freehold-property-in-india (propertyadviser.in)
- “Conveyance Deed: Transfer Of Ownership And Rights” » Lawful Legal
- Granting Clause – Definition and Explanation | Real Estate Words
- Delivery, acceptance, and validity of deeds | firsttuesday Journal
- Sale Deed vs Conveyance Deed: How is it different, uses, legal application (99acres.com)
- What is a mutation entry? (makaan.com)
- Mutation Entries alone do not confer Title in immovable properties (legalserviceindia.com)
- What is Property card and why do you need it? (99acres.com)
- What exactly is a location plan (site plan)? – Real Estate Sector Latest News, Updates & Insights – PropertyPistol Blog
- Survey Plan: Everything you Need to Know – REDOC Homes (redocint.com)
- Bare Act; The Indian Stamp Act, 1899; Universal|LexisNexis
- Understanding Plot Plans – archisoup
- Defining a Structure Plan | Quality Planning
- India Code: Real Estate (Regulation and Development) Act, 2016.
- Procedure of registration of Conveyance Deed – Advocate Tanwar
- https://www.ezylegal.in/blogs/power-of-attorney-poa-in-hyderabad
- AN OVERVIEW OF DEVELOPMENT AGREEMENTS (indianrealestateblawg.com)
- What is a Conveyance Deed & Why Conveyance Deed Is Required? (homebazaar.com)
- Cohesive Guide on Conveyance Deeds (tatacapital.com)
