 which normally in the court we would not require, but yes, the ingredients and the process as to whether they were followed or not definitely can be under the challenge. But yes, the procedural aspects were whether kept into mind whether the well is shrouded in mystery, that would be a separate chapter and separate section. But only today we have restricted ourselves as to what could be the procedure and what should be the way to draw forward. Over to you sir. Yes sir. Good evening to one and all. I am extremely happy to express my sincere gratitude to Beyond Law CLC, especially to Mr. Vikash for providing me a platform to express the nuances of drafting skills. I will be failing in my duty if I forgot to mention my brother, Mr. Reyes Ravi, Additional District Judge Coimbatore who has introduced to Mr. Vikash. Beyond Law CLC is organizing webinars on exceptional practical topics so that it reaches the law students, young lawyers, advocates and more particularly the common public. The topic will throw much light on the context of drafting and I am of consider view that your proper drafting would minimize the institution of fresh cases on the informatics in the document. This endeavor is to reach out to the law students, young lawyers, judicial exam aspirants in uplifting them to do the fire exercise of drafting in an approved legal method. To begin with, lot two, the philosopher has quoted that knowledge is a treasure but practice is the key to it. The importance of this topic is that due to some negligence in drafting of the document like sale deed will, the parties are unable to solve their issues and has to approach the court of law. The use of appropriate words is an important matter in drafting a document. A common fault of present day drafting is the tendency to express the intention of the parties in a more complicated way rather than in a simple and direct method. In the words of Sir Ivar Brown, I quote, the craftsman is proud and careful of his tools. The surgeon does not operate with an old razor blade. The sportsman fusses happily and long over the choice of rod, gun, club or racket but the man who is working in words unless he is a professional writer and not always then is singularly neglected in his instrument. It is seen in practice that an experienced draft man always use tried and tested classes rather than using alternative language and longer sentences would be avoided. The problem arises if complicated sentences are used in a document then giving opportunity to the interpreters, more particularly the court and then usually they assume that every word in a document is there for a reason and unnecessary words may be interpreted in a way rather than the writer had originally intended. To avoid such fallacy a detailed discussion needed to address the issue. A document is defined under the evidence act 96 and 3 of the act speaks that as 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 by which may be used for the purpose of recording that matter any sale of immobile property more than rupees 100 value has to be compulsorily registered as per section 49 of the Indian registration act. So if somebody wants to read on the context whether the nuances out to why it is necessary what is the purpose and other things then we can refer to the document the citation referred in 2014 volume 5 ctc page 41. Now before ever proceeding to start the drafting drafting of a sale day I will just highlight what are the common some of the methods which we have to ensure before drafting the particular document. It is commonly noticed by court of law that while tendering evidence there are various infirmities that if suitable steps are taken right at the point of drafting and registration of the document then often the exercise of drafting the sale date is done by the document writer without adhering to the basic principles of drafting regarding the description of property therein. The status of the parties to be considered the payment of consideration is paramount important and the witnesses to it is also equally important. It is most important legal document referred to be executed between the seller and purchaser and at the time of purchasing the property sale deed indicate that the title of the ownership of the concerned property is transferred from the name of the seller to that of the purchaser. It is to be observed that the rights and obligation of the seller passes to the purchaser. The sale deed should contain details of buyer, seller, area, location of the property and the payment of details between the parties. The sale deed has to be registered with the nearest sub register office where the property is situated and the sub register has to verify whether the entire consideration is passed to the seller by the purchaser. As per section 54 of the Transfer of Property Act 1885, it defines a sale that the transfer of property or transfer of ownership from the seller to the buyer for the consideration of money paid, partly paid or promised to be paid in future. The buyer has to ensure the status of the property by obtaining proper incomparance at VK before he enters into the agreement of sale. That whether the property is free from any incomparances and whether the seller has really the original title to transfer. The professionals like advocates, license to document writers, chartered accountants have been using the exercise of writing the document and they also have obtained the license for preparing such daily sale deeds. Now, important classes that has to be found in the sale deed, I will just enumerate one by one so that while drafting the sale, we will keep these things in mind so that in future, supposing if the original document is drafted in such a way that there will be no informities in the document so that the parties need not approach the court of law or any arbitrator to resolve their issues. If it is clear in a clear cut terms, then the future litigation is avoided. Yes, first point is that the sale deed must contain the details of the buyer and seller, their respective names, addresses, age of the parties, contact details, occupation of the parties and the date of execution of the sale. Now, usually what happens is that like that of the plaint, a cut copy methodology, paste methodology is used in all over India which is low computer is a gift to us, the proper usage has to be ensured. Supposing often we found out that in a suit for declaration, some paragraph which is not relevant to that suit has been found which says that earlier injection suit by cut copy methodology, it is pasted by oversight. So in a hurry, the plaint is injected to the court of law, then the bench clerk finds it, then or even if it is numbered, then the court finds it at the stage of considering the return statement and so on and so forth. So next point that needs to be addressed is that the information provided in the sale deed by the parties must be true and accurate and the name of the seller should be described as found in the identity card like Aadhar card, then previous title deed and that should be ensured. The competence of the seller has to be considered. Supposing if a minor comes into a contract that I am selling the property, then he is incompetent to enter into any sale of contract. So that the competence of the party has to be found out, then whether the person executing the sale, the seller, whether he is of sound mind that has to be ensured. So that the person should be of above 18 years and he should be of sound mind. If guardian executes a sale in favour of a minor, in some cases there may be instances, then necessary permission from the competent district court has to be obtained for getting the property to be sailed through the court of law. In case of a landed property, the description should be uprisely given. The description of the property should contain information like the survey number, the description of the locality where it is located, area, the length and breadth of the land that is to be sold out. If it is a plot, then the plot number, the directions of the land which is situated, whether it is facing east or north or any other directions, then the four boundaries is also important to identify the properties. If the property, suppose that the earlier the seller has pledged the property to some financiers, then it should also be ensured by obtaining a copy from the superior staff, whether there is any previous governments or not. Then if it is there any pledged property, already there is a previous transactions or encumbrance, then that should be properly entered in the draft sale deed. Next point which is to be considered is that nowadays we are purchasing the property in the flat systems, apartments, etc. In such a case of constructed house, the corporate area, apartment registration number, the ward number, the area, the approved plan by the corporation, that is more important. The EB assessment member, water tax assessment number, all to be mentioned without any omission. Next point which we have to ponder is that the most important and primary factor is that the price of the property which is sold should be specifically mentioned and to what price the buyer intends to purchase and the details of payment has to be, has to whether consideration has been paid by way of cash or check or by way of any left method or RTGS or any mode of electronic transfer, that has to be ensured and it should also find a place in the sale deed so that it will avoid future predications. Next point which we need to give importance is that the sale deed must contain a clause that states that the title of the property is transferred to the buyer by the seller and that words must be in express terms regarding conveyance of the property that the seller so and so the seller, supposing a seller is A is conveying the property to B, the buyer, he should say that the title of A is hereby conveyed in favor of B and that the entire title right and other thing passes on to B, that should be a specific term in the class then the next point which need to be considered is the sale must contain the details on which the property will come into possession to the buyer and in case of your building allotted to the housing board then allotment certificate by the concerned board has to be procured then NOC, no objection certificate from the concerned department with regard to any previous due pending by the seller if there is already a due then it has to be cleared before he is entering into a sale then these are all the instances which has to be born out in mind supposing if there are any encumbrances which is not projected by the seller to the buyer at the time of execution of the sale deed it is safer to incorporate an indemnity class, indemnity class I will ensure that indemnity class is to be added to make sure that when the property is sold the buyer is free from encumbrances and to ensure that seller has paid all the existing charges on the property and other taxes like property tax, water tax, electricity bill and development charges to the concerned corporation it should be ensured then the next two things we have to do give importance is that it is to be noted that the property is not subjected to any encumbrances it is the foremost thing which we have to ascertain from the copy of the encumbrance then if at all whether there is any mortgages then charges, lien, attachment claims regarding demand acquisition proceedings by the concerned government and an undertaking to be made in the class that the seller would resolve all such encumbrances so it is mandatory that it is also binding on the party if an encumbrance class is made in the sale deed itself then it will be a safer to see that if at all any encumbrance arise in future which is not been noticed at the time of execution of the document then the buyer is at option to exercise his right as against the seller if at all any indemnity has to be cleared off. Next point after drafting of the sale deeds what should be done the parties should shine in the document in the presence of two witnesses and the witnesses details like name is age identity proof nowadays author number is there so we can very well incorporate the author number and the author copy to be annexed to the sale deed it is to be ensured that the executant both the parties are signing in each and every page of the sale deed in Tamil Nadu there is a mandatory rule that has been brought out that both the party should be present for executing the sale deed itself it's not a unilateral document both parties should come and they should sign before it the witness has to sign in the last page the witness would see that they in their presence the document has been executed by the seller and the buyer also has a fixed signature the next point that comes to is that the required stamp to be paid by the buyer or the as the case may be when the buyer the buyer in normally usually what happens is the buyer will produce will will buy the stamp papers pay the stamp duties and he will also prepare the sale deed the parties next may assign time limit for performing their respective duties and obligations regarding handle handing over opposition with the time prescribed and in the case of any failure the action to be taken against the defaulting party probably this class may be incorporated while we while we are feigning while we are drafting the sale agreement itself supposing if the if a property a is selling to b for a consideration of rupees 10 lakhs then 9 lakhs is paid on the date of agreement itself then there will be a class stating that the property will be handed over to be after three months since the other measurement and other identity of the property has to be ensured and that pending process is with the concerned corporations so after three months the time limit the b is ready to pay the balance sale consideration then he a should also execute the sale date if he fails then he is violating the class which is already agreed between the parties one thing we have to ensure is that when the agreement of sale is entered then the all the classes which the party has to oblige or do on their part has to be specifically stated so that in case of any default we can enforce as against the other party this is one of the thing which has to be carried out to be kept in mind while drafting the sale date now there are disputes disputes are arising in the court of law day by day because there is no mandatory settlement class in the deed itself so to avoid any future litigation as already stated now the commercial courts has been come out has come out and the commercial court act has been incorporated just like that we can have a by way of innovative method here after when the sale date is here to be executed then we can safely add a class stating that if at all any dispute arise between the parties then x so on so will be the arbitrator between the parties to settle the dispute instead of going to the court understanding the queue to get the relief interest we can choose out for the ADR method in the document itself we can exercise such a methodology in the like fixing an arbitration or mediation as the case may be or agree with the parties at the time of inception of sale date that can be ensured or the legal advisor you the advocates himself can give you an option to the parties that sir this is these are all the matters now in the present era we are facing anything like the same kind of issues so it avoids such any litigation in future we will fix a arbitration class in the deed itself so there is nothing wrong in fixing such a arbitration class now i will just highlight the rights and liabilities of the seller as per section 55 of the tp act now what the buyer has to what the seller has to do is that he has to disclose to the buyer any material defect in the property of which the buyer could not with ordinary care discover next so he has to produce all documents of title original documents of title relating to the property to the buyer next to answer to the best of his information all relevant and reasonable questions put to him by the buyer then on payment of consideration by the buyer he has to execute the sale date next to take care of the document of title and property which are in his possession as a owner of ordinary prudence would take off such property supposing as already i narrated the example if three months time is fixed for execution of the sale deed in the agreement itself then still such time the owner the seller he cannot wipe close his eyes and see that the property i have already entered into the agreement i will not look after the property let whatever happened be happened i have already entered into the agreement most of the sale consideration has been received by me this is not the case so unless a sale agreement is entered by him he has to take proper care and execute see that the property is safeguarded till this is it is handed over to the property namely the purchase so that that is to be ensured to pay all public charges what is the public charges tax water tax eb bills and property tax corporation tax nowadays they are collecting drainage taxes by the concerned corporations so whatever be there let it be paid by him then on receipt of full consideration he has to hand over all the original title deeds to the buyer it has to be seen that original title deed should be ensured because somebody may say that i have lost the document or something like that later on it is found that they will be giving the original they will have pledged the original document with some third party financiers so the buyer will be put at burial so the insiders paying all the sale consideration again he will be placed with the original burden to knock the door of the court to enforce is the right to take possession or to clear the incomparance so this aspect has to be done by the seller now what are all the steps that has to be taken by the buyer for purchasing or registering a property the buyer has to ensure that the property is free from all incomparances or pending litigation with respect to property title any mortgage bending so the entire thing cannot be given to the buyer seller itself the buyer is also to be aware buyer be aware so what what he has to do he has to first whenever when he proposes to purchase a property situated in a particular place if he wishes to purchase that property the first and foremost thing that he has to take care is that he should go to the concerned sub-restaurant office or he can go for online methodology and get the incomparance certificate of the property concerned probably for 20 years so that has to be ensured by the buyer so next point the buyer has to be ensured is that the buyer has to verify the classification of the property from the government records along with other important records to locate the property against the adjoining property so this is also another methodology which has to be ensured by the buyer then buyer has to verify as to any change in ownership due to estate filing or transfer of property or death etc no objection certificate to be obtained from the co-owner in case of joint property then to verify the valuation of property and guideline of the property supposing if he wants to buy a property the seller may say he fix any amount of price maybe he fix according to himself Francis but the market value and the guideline value of the particular area has to be ensured by getting the valuation of the particular area before the sub-restaur by making an application so that it can be fixed that reasonable amount is paid to the property concerned then the buyer has to pay the stamp duty at register office and then the stamp duty nowadays it varies from 4 percent to 7 percent of the market value of the property now documents that are required for registration now the drafting is done everything has been put into writing and the stamp paper has been purchased by the buyer the contents and other classes which has been incorporated fairly or typed or printed whatever may be if it is then what is the next process that has to be ensured or attached with the registration of the documents first thing is that the duplicate copy of the sale deed to be annexed two passport size photographs of the buyer seller and the two witnesses ought to be produced in golden days you can see that in the old ancestral property there are documents usually there will be the the seller will execute the document then the witnesses just will sign and go nowadays to ensure accuracy and also to see that the proper the proper person is signing the document just we do in the court of law the other card and other details the photographs of the persons are no procured by the registers to ensure that the persons who is signing it's a witness is of a true genuine person and that the document is properly executed without any fraud or foul play now photo identity proof such as other card voter ID card of the parties is a must then revenue records like even in case of agriculture property then pata chitta or the property register card so that it can be verified that property does not belong to government now the sub register also put on hold that any property supposing if a and b enters into an agreement or a sale deed is executed by a as against b where he's not the owner of the property and that the in fact the property belongs to the government then it is for the sub register to ensure that the government property is not just like trade by the parties or anything he has to see a put on hold while visiting the document now then the copy of the municipal tax bill eb bill that has to be attached to the property document sale deed copy of fan code of both the parties both the seller and the buyer has to be attached now coming to the process of registration of the sale deed what is the process everything has been done now we have attached the along with the sale deed the eb bill the original parent document sale deed sorry pata chitta involved revenue records photo identity other card of the parties etc now the step one preparation for registration is the total consideration as stated in the sale deed must have been paid to the seller that should not be any arrears of previous loan house tax society dues etc and if arrears is there register can refuse the registration so the eraser has to ensure that all these views are settled at right before entering in the before registering the sale deed now what is the stamp duty that has to be paid for the sale deed for example calculation of stamp duty is to be paid and that usually four to seven percent of the market value of the property depending upon each state they are fixed at each state government in their discretion the wisdom they are fixed a certain percentage for example instances in Delhi stamp in Delhi the stamp duty is six percent for male and four percent for female likewise in Chennai it is seven percent and it is Bangalore it is five percent and that along with the stamp duty registration charges of one percent of the set set value has to be paid by the buyer next step next stage is that payment of stamp duty online payment facility is now available for Delhi Gujarat Karnataka Chandigarh by visiting the site namely stock holding corporation of India i have given that website along with the written material that has been sent to mr vika so later on if he is circulating you can also have a look up look at the material that has that has been circulated and that the stamp duty even it may be purchased from the service stars as the stamp vendors or from the concerned treasury by raising an indent or by net banking or debit card through online by any of the method that is prescribed therein after submission of the stamp duty the buyer has to carry carry the printout of the online reference acknowledgement numbers so and so and to take out of the print of the stamp and each and each stamp paper as a unique you identification number for future reference and usage so instead of supposing if the property value goes for close together then the stamp duty has to be paid for last together then the bunch of the sale paper will be like a book booklet so it avoids such thing the stamp can be utilized it will be avoided the much weightage or the burden to the sale date next the buyer may also visit the nearest bank authorized center now the in some of the states they are fixed the some of the banks as the collection center so the stamp will be sample to be paid to the by visiting the concerned bank and the necessary details therein can be procured and can be affixed in the sale date next thing is that purchase stamp paper for the required amount from the authorized stamp vendor stamp vendor in that area and thereafter the printout may be taken of the contents of the sale date the stamp paper and if more pages are to be taken then it can be printed out in green sheets supposing if the sale date contains 10 to 15 pages then the stamp paper is procured for a suppose 50,000 or something a single sheet or raised then the other additional sits may be by way of green sheet that can be incorporated if e stamp is purchased then print out of the same has to be attached with the plane paper now registration at the sub register what is the process appointment has to be taken from the nearest sub register after submitting the necessary document as set out in the as set out and a token will be issued by the concerned sub register according to the date and time in which the party intends to execute the sale date so a token is issued by the concerned sub register to avoid the time slot next to the appointment also can be taken on online if e stamping facility is await supposing if everything is goes it goes on online if you're putting if a party approaches a professional licensed drafter then he will be used to that how to use it and other things may be online he will be well versed then that can also be utilized supposing if a layman is writing a document and I think then the normal procedures can be followed on the date of appointment the buyer and the seller along with the witnesses must be present at the time of registration as regards the Tamil Nadu government it has passed a Tamil Nadu registration identity verification for the registration of documents rules 2018 and that any person presenting any document at the proper registration office for registration under section 32 of the act may utilize facility of consent based author authentication service to fulfill the requirement to ensure the identity now the this rules has been framed consent based author authentication service means it is an electronic authentication carried out by the unique you identification authority of India UI DAI or agencies appointed by it after matching the biometric information of an individual at this request or with his concern with the information maintained by the UI AD DAI now next point the buyer and the seller have to sign each page and witness out to sign only on the last page the buyer and seller fingerprints will also be taken at the time of registration in Tamil Nadu as already I said the time duty is at 7% of the market value of the property and registration fee is at 1% of the value of the property in case of property registration on account of exchange of property it is the same duties at 7% on the market value of the property of the higher value property and the registration fee of 1% there and there property registration in Tamil Nadu must be completed within four months of executing the sale deed and delay in registration attracts penalty as follows now what is that four months supposing A and B executes a sale deed on let us take on 20th February 2021 then three months time four months time is that they will be signing the document and everything will be done but they will not be presenting the same for the register if they are keeping on for they cannot keep it keep it on for years together because it has to be registered in proper May so four months time is granted supposing if the party in as far as Tamil Nadu is concerned if they execute the sale deed and come after one week then 25% of the registration fee has to be paid as penalty supposing the both parties prolong the matter for one month then 75% of the registration fee has to be paid supposing if they come at the last fragment of the day four months then 100% of the registration fee has to be paid as penalty so the the legislator thought it fit that a person cannot keep it on like according to their whims and fancies and it has to be registered under section 17a of the registration act to ensure that proper compliance a penalty class has been invoked by the Tamil Nadu government to ensure that it is properly done in the manner required in Kerala online registration of document is also available one has to visit the site namely www.keralaregistration.government.in and can log in to the online property registration portal then the applicant can apply for document registration by selecting this time slot namely token will be given and has to update the details of particulars as sought for after presenting the document and annexures as required manually details should be updated supposing in online there is a provision wherein we can click on to the concern portal and if you want to have the document drafted there is a particular app that by clicking the same we can give the enter the details which is now called by electronically so that method also there if you are used to the computer and if you are well versed in online procedures then we can move we can go for that otherwise we can draft the document as we are doing it routinely and we can see that the all the conditions are ensured now collection of sale deal now we have given the document before the register everything has been done it has been registered the part with the seller and buyer as a signature witnesses also procure their respective signatures now the registration has been completed in the way required now the collection of sale deal what is to be done after signing of the sale deal token slip will be issued for future reference and the same to be shown while collecting the original sale deal original registered sale deed can be collected within 15 to 20 days of the debt after registration in case loan is availed from a particular bank then the bank will directly collect the original registered deed from the sub register you cannot collect it because if there is a lien or if a loan has been availed for purchasing the property then the original will be straight away taken taken by the bank so that will be the process now what is the benefits of sale deal whether whether the unregistered sale it can be taken and why not to view all these sale deeds or stamp duties all this actitious process it is a registration of sale deed is a process wherein it announces to the world that the particular owner of the property is a such a person and that the owner the property which originally raised upon a has been transferred to be by way of the conveyance deeds so on so it is an announcement of notice to the entire world now i will just address the benefits of sale deed it is to be seen that a well drafted sale deed would avoid for future litigation and confusion it is enforceable in a court of law section 17 one of the registration act provides for what are the documents which required compulsory registration a list of documents have been set out there in on 24 9 2001 through an amendment was though an amendment was introduced as per section 17 one capital A of the registration act it was only for the purpose of protecting the person under section 53 A of TPA if a suit is filed on the basis of sale deed for protecting the possession of the buyer the said agreement shall be registered under section 17 one capital A of TPA of registration act for a suit filed for enforcing the contract under specific relief and registration is not necessary because though registration act was amended on 112 2012 the provisor to section 49 was not amended since there is no necessity that the for filing a suit for specific performance the agreement should be compulsorily registered if you want to read the authority on that contest it is reported in 2018 7 SCC 439 the authority speaks well of the contact the other authorities 2019 6 CTC 580 580 supposing if a document is executed on 8 6 2021 the same has to be registered within four months as already told told you from the date of execution as per section 47 of the registration act for that you can look into the authority 2018 2 CTC 407 then as per section 33 34 and 35 of indian stamp act when unregistered and stamped document is produced before the court then the court as a public office is entitled to impound the document under section 33 of the stamp act as public office the authority on this may be on maybe you can take it down if you are interested 2008 4 SCC 2008 4 SCC 720 you may have some doubt with regard because law students also are viewing this program there may be family arrangement and oral family arrangement is permissible and there is no necessary to register the same if the family arrangements records the earlier partition of the parties and the same is found is for the mutation purpose in the revenue record then no registration is required if property is divided under meets and bounds then registration is necessary then you can also last one so you can note down this authority you can read if you find lesser time ar 1976 ar 1976 supreme court 807 now i have given a sale deed model form then mr vikas sir whether i want to go through the entire model form or you will circulate it you will share it on the whatsapp book yes sir okay i have given the material to mr vikas sir so you can we can get it there now we will move on to the will what is the purpose of will indian succession act section 2 h defines that will means legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death the difference between transfer and will is that transfer connotes normally between two living persons during their lifetime but will take effect after the demise of the testator and transfer in that perspective becomes incongruous after the death of the person his property devolves in two ways according to his will namely testamentary or according to the respective laws of succession when no will is made by the testator now it is seen that during this pandemic time it is seen in foreign countries the will dafting practitioners have seen an enormous increase in their workload and they have come up with their innovative ways to comply with the strict rules relating to preparation and execution of the will in india if a male dies interstate without making a will his asserts have to be distributed according to the hindu succession act and the property is transferred to the legal heirs of the deceased registration of will is optional and it is not compulsory as regards probate on the death of the testator an executor of the will or a heir of the deceased testator can apply for a probate the court will ask the other legal heirs of the deceased whether they have any objection to the said application a probate is a copy of will certified by the court of law and is and is a conclusive evidence that the will is denied recently supreme court held that petitions for probate or letters of administration of the will of the distraiter must be filed within three months from the date of his death so that is the the hunt for apex court has come down that the three months time is mandatory to file any such application i don't want to dwell deep into it because already lordship justice rajiv balla had dealt it deeply with it yesterday so i will go for the drafting of the will a will is a legal declaration of your person on your document regarding the distribution of his asserts after his death this document is a unilateral document that comes into force after the death of the executor though the will is a legal document there is no prescribed format of it and it can be even in handwritten or in a type or maybe typed in a plain paper and that there is no necessity that it should be on a stamp paper the will may be revoked or altered by the executor at any time before his death supposing a person a makes a will in favor of b and see his legal hires if they fail to maintain him in his whole days then he can have an option to revoke the earlier will and according to his choice supposing if it is a self-proclaimed property of a then he's at liberty to execute his will according to his whims and fancies but that is not the case in case of ancestral property in ancestral property since nowadays after the amendment of hindu succession acts x and six and 2005 amendment the daughter is also is taken in power with the sun so equal status force so go personally right to the daughter also so there cannot be any classification unless there is a specific registered document before the enactment of the amendment act now what are the categories of the will the will is governed by the laws relating to transfer of property act indian succession act 1925 and the indian registration act 1908 and also the indian stamp act there are two categories of will one is that the privileged will and unprivileged will privileged will or made by soldiers who are employed in an expedition or war or an airman so that we cannot we need not go much upon it then we'll go to the unprivileged wills but the unprivileged wills or other kinds of wills that it imbibes a lot of formalities to be carried out right from verification of signature till attestation of witnesses so this is an important point whether a hindu what is the power of a hindu to execute a will under mithakshana law hindu could because his separate and self acquired properties even prior to the hindu succession act being enacted a hindu being a member of the joint family could only possess his separate property and would only part with his separate property and not inherited from his father grandfather or great grandfather a hindu could execute a will because thing is separate separate and self acquired property it is settled that in case of property of the joint family as long as the property is joined the right of the coparsener can be described only as an interest it is to be noted that on division of the joint family property there is a definite share where there is a beats and bounds then the share translates into an absolute right so important ingredients of a will that has to be seen by the drafter while writing a will a will must have the following essential characteristics what are they one the actual intention of the testator which is to take effect after his death the draftsman shall avoid cut copy paste methodology because it will lead to further complication now supposing if a person a who is very old wants to because a will he asks his grandson or the BRC to procure a draftsman or to take him to a give instruction to a legal practitioner the legal practitioner has to ensure that he meets the testator in person gets the intention of the person what are all the properties that he wants to procure or give because his property to what are all the legal hairs that has to be ensured first of all whether the property is his self acquired property or answers to that has to be ensured the will must describe the manner of disposal of the property supposing if the property is to be executed or enjoyed in a particular way then an executor has to be appointed so that it is seen that the will of the testator is properly put into execution the will can be altered or revoked during the lifetime of the testator as per section 59 of the indian succession act 1925 the testator must be above the age of 18 years and of sound mind so we are we are crossing a lot of litigations only based upon the thing that the testator was not was a one sound mind while executing the will he was ill he was taking this some sort of treatment for his chronic disease so he is not in the presence of mind to execute the will these are all the things that are the various suits are coming up popping up before pending for various courts now um section 59 also prohibits the person from making a will even he's in the state of intoxication or suffering from illness supposing if a person is in the intoxication stage here he is in the intoxication state take it for granted be his friend is accompanying him he asked him to execute a gift to deed or whatever thing to make it because gift to deed then if it's in the state of intoxication then naturally the said the said transaction would be issued execution of the will for execution of the will a probate in india needs to be obtained from the competent court normally the district court a probate of will is a legal certification of the geninus of the will which can be procured by filing an application before the court with the details of the schedule of property and can annexing a copy of the will and requesting the court to grant probate to carry out the intention of the test data normally when a will is drafted the implication which followed to the beneficiary has to be considered and it would be safe to inform the beneficiaries of the same further to avoid complication the best method to safeguard the will would be to register the same so that it is preserved and acquires a legal status validly validity than that of the unregistered will the draftsman shall take instructions directly from the test data as I already told you to ensure that his intention and witnesses and the visitors are considered it is to be ascertained that property to be required is of self acquired property or of ancestral property if it is an ancestral property and proper advice has to be rendered to the test data that it would be changed by persons by inheritance of claim supposing if there are if it is an ancestral property and there are other legal hair surviving hairs he cannot because all the property in favor of somebody he wishes to make because the other property who are all legal competence inheritance then naturally they will challenge the will then it will take years together to settle down now details which is to be included in will the name age address and other identity proofs of the distraitor shall be mentioned in the will when it is executed the distraitor shall declare that he's of sound mind and not under coercion while drawing the same this class has to be interpreted has to be incorporated because normally a person a document writer he will not see that he will write as if in the long normal colloquial language it has to be ensured that when a legal draftsman is writing a will or drafting a will it should be ensured the details of the beneficiary of the will and the distribution of asserts among them shall be mentioned the name age address and the relationship of the beneficiaries with that of the test data shall be mentioned specifically to avoid confusions in the future in order to ensure that the will is carried out as per the intention of the distraitor an executor may be appointed as already told you an executor may be a person of legal knowledge or as a person a friend or a some well-wisher of the concerned family may be appointed so that he sees that the intention of the willer is put into practice most importantly the will should contain the details of asserts and the property that the distraitor has and the allotment of the property in the will next the distraitor shall state the share to each of the beneficiaries on the property and a detailed list may be prepared shall be annexed to the will to avoid future confusion in case one of the beneficiary being minor then naturally a custodian or a guardian has to be appointed to ensure that the minor is getting the property in his proper tenure the distraitor should give directions as to the implement of the terms of the will then the distraitor should affix his signature thumb impression in the presence of at least two witnesses it is mandatory the witness may be known known know the details of will may not know the details of will but they just have to verify the signature of the distraitor was affixed in front of them attestation means the attestor must see the executant signing and vice versa both persons should see it say it is not that addressing witness after the execution of will they came they asked to sign it they just sign it and go not is nothing you should see that the executant actually signing the will and the preparation of the will you should also be there is a judgment also where the you should take part you should have witnessed the drafting of the will and the instruction of the distraitor to the craftsman and the signature of the executor before the witnesses etc that has to be done as per section 63 c of the indian evidence act the will shall be attested by two or more witnesses the distraitor should sign with the date on the will and the witnesses to sign on the same there are various grounds to challenge the will if we note down some of the challenges then we can carefully draft the will while drafting if a will is alleged to have made due to coercion a compulsion a fraud or undue influence that it is what was not drawn with a clear intention of the distraitor then it can be challenged there are certain elements which give rights to reasonable suspicious circumstances that some foul play has happened if the distraitor is of unsound mind while drawing the will then it will be challenged if the will contain signature of the distraitor alone and when there is no attesting witnesses it can be challenged as no proper execution if the distraitor did not have sufficient knowledge of signing the will it can be taken as a ground for challenging the validity of the will now what are the grounds for revocation of the will supposing if the distraitor has already told you if he has because of the will in favor of his legal hats if they are if they fail to maintain then he has an option to revoke the will supposing if the will executed to be executed by the distraitor and it is found that after his death and was not sorry revocation of the will supposing if a will allows to be executed by the distraitor and if it is not found after his death the will is not found and was lost to stay in with the distraitor position the distraitor was having the original will he had shown it to the witnesses then later on it was not handed over to any of the persons and it is not found then it has to presumed that it has been destroyed by the distraitor itself it is also a ground for revocation then if the distraitor executes a subsequent will a previous will automatically gets revoked if there is a declaration of intention to revoke the will by the distraitor in a written form in the original will then it can be taken into consideration to uphold that the new will revokes the earlier one if unprivileged will is executed after the privileged will then it shall overrule the privileged will if the distraitor gets married after the will it shall be deemed to be revoked on the rate of his execution of the will he may not be married supposing if he marries after the execution of the will then the legal hair steps in then naturally the disposition has to be in accordance with the inheritance that has to be ensured it is an important principle under the Indian succession act to safeguard the interest of actual descendants properties required under the will it is to be noted that all the movable and immovable assets fixed deposits money in bank accounts securities bonds proceedings of insurance policies retirement benefits precious metals like gold silver brand names trademarks and intellectual property rights all are can be because competence of the witnesses the witness shall be of 18 years and above a minor cannot sign to be to be a witness of the will and the he should be of sound mind there should be two witnesses to the will as per section 68 of the Indian succession act as per section 69 of the evidence act the attestation by both the witnesses is to be proved by what way by examining one witnesses before the court as per section 63 Indian evidence Indian succession act attestation of two witnesses required now but how the will proof of execution how it is to be proved that it has been executed mere fact that the will was registered one is no proof of execution unless or until the signature of the executant and witnesses or prove in the absence of evidence to show that the destater was unconscious at the time of execution of second will its execution has been proved to be genuine and validly executed this is a case law we you can find it in AIR 2005 you can note it down if you find time you can read it this is a very good judgment AIR 2005 supreme court 2003 now proof of valid execution of the will as per section 67 and 68 of the Indian evidence act it is relevant and under section 67 if your document is alleged to be signed by any person the signature of the said person must be proved to be in his handwriting and for proving such handwriting section 45 and section 47 of the evidence act is relevant and the opinion of experts and of persons acquainted with the handwriting of the person concerned or made relevant so it is an expert evidence opposing if the person says they want to prove by way of any other admitted document then you can take it for expert evidence the test to be applied would be the usual test of satisfaction of the prudent man in such matters it was held by the honorable apex court that the propounder would be called upon to show by satisfactory evidence that the will was signed by the testator and he was in sound disposing state of mind and had understood the nature of disposition and had affixed his signature to the document out of his own free will so the authority you know this the context was proposed in AIR 1959 AIR 1959 supreme court 443 page number 443 there may be another instances merely because a will is registered its geninus cannot be presumed the registration of the will does not change the bonus of proof from its propounder to the challenger when doubt is raised it is a Bombay court judgment you can also note down AIR 2009 AIR 2009 within bracket NOC 274 Bombay there may be instances when no attesting witnesses are available for strict proof of execution and attestation then it's a it needs some relaxation by way of that the signature and handwriting as contemplated in section 69 must be proved supposing if the way both the attesting witnesses are not found or they they passed away then what will be the way to prove that the will has been executed by the testator in such circumstances you can read AIR 2008 supreme court 2485 the honorable supreme court has write down the guidelines supposing if you are tested testatrix who was not an educated lady the surviving daughters of the testator had been disinherited and the beneficiary or is a mortgage of the lands belonging to the testatrix and a tenant in respect of some of the properties of the testatrix then it was erroneous to hold that the execution of the will had been proved in a in view of peculiar facts and circumstances and matter was liable to be remanded for first consideration supposing if there is a normal legal hair the destatered issues all of them and the will is in favor of the finance year or the person who is in the tenant then that then normally it creates suspicious circumstances because the disposition itself is not in the normal course of way so when it is not in accordance with the inheritance law then the person who is normally entitled to the property will have a right to challenge the same before the court of law just these are all the instances which comes sir whether i can take another five five more minutes sir because sir yes thank you uh next now if the testator were to inherit a legal hair in particular his wife and children then it would be improbable or unnatural but it would not be invalid in such circumstances it is necessary for the court to find out the reasons for such disinheritance sometimes a reason may be found in the will itself in the absence of satisfactory explanation it may also constitute a suspicious circumstances when legal hairs are disinherited the court has to scrutinize the evidence with greater degree of care than usual usually the court of law sits in the armchair of the destater to see that the wish of the destater is executed in such circumstances if a suspicious circumstances is uh uh surrounded and it is raised by the parties or the legal hair then it is for the court to find out that whether it is actually that is surrounded by suspicious circumstances so in that context you can also read a judgment of the honorable karnataka echoed a year 2008 a year 2008 no c 2433 karnataka i want to just to give a small brush of hindu succession act 1956 now daughters are entitled to a share in ancestral property that is the proposition now after the amendment made in section six of the hindu succession act in the year 2005 the daughters are entitled to a share in the ancestral property as a co-partner there is no doubt the amendment was enacted to remove the discrimination as contained in section six of the hindu succession act 1956 by giving equal right and liabilities to the daughters in hindu mitakshara co-partner property as that of the sense the amendment came into effect from nine nine 2005 the date is very crucial nine nine 2005 it creates a substantive right in favor of the daughter a daughter has a right to shoe for partition as against other co-partners including her father as per section six of the hindu succession act a daughter has made has been made as a co-partner and any testamentary disposition of property taken place before 2012 2004 shall not be affected supposing if there is a registered partition between the sons and the father excluding the daughter then the daughter cannot challenge it because already there is a registered deed of execution so otherwise the general rule of succession has to follow the as far as the evidence act is concerned with regard to the documents section 61 of the evidence act mandates that documents as documentary evidence has to be proved by way of primary evidence what is that we have to give the original document itself to record supposing the document is not produced then the secondary evidence may be let in provided the certified copies has to be produced or the original copy will be on the other side different will be having that then you have to inform the court that already the original document is with the defendant so ask him to produce the document where we will notice to the concerned defendant if he fails to produce the then you will press an application before the bottom lot except the secondary evidence in the same in the stated cases now order 13 rule 8 CPC mandates for impounding a document for stamp duty as per section 68 of the evidence act one are testing witness is in the master to the document so we have to see that whenever we draft a document like sale deed or a will the attesting witness is a must and that they should be of a sound mind and although the age of 18 years probably if any descent returns is then wherein the normal flow of share is disrupted by giving a third party a right over the property by the tester then care and caution should be taken taken similarly if any property is not given to the legal heirs then it should be addressed to the tester itself by the draftsmen particularly the lawyers and lawyers you can take note of you can address him saying that even if it is a self acquired property he can do according to his vision wins and fancies but if it is an ancestral property then cash should be taken that the normal flow of inheritance as they have their right and even though if a will is drafted or executed it will be challenged before you vote of law sir i think i can i have made justification to the topic which is given to me any questions on the context maybe are invited yes it's a fantastic session the interplay between the forex indian succession act transfer of property act covered with registration i can stamp back can only be done once you are thorough with this deck yes two questions have come by shayaja shethi uh uh city uh whether thumb impression is mandatory on a win uh supposing if the person's uh supposing if the person is an educated person and the witnesses are there he can sign it thumb impression is not mandatory it has to be seen that it is procured or executed before the uh two attesting witnesses that attesting witnesses has to be proved by way of 663 as already i told yes whether nomination overrides the win nomination is supposing if there are bank shares or a document a deposit is in the bank then your nomination is necessary wherein the nominee is not a person to inherit the is a person to get the deposit and he has to equally distribute it among the legal acts so a nominee is in a different context executor of the will is different and the nominee is a different person yes sir i'm just checking it out as to whether there's something on the youtube he says that the registration fees in Tamil Nadu has changed from uh to four percent not one percent and presently as time duty seven percent as rightly said by you yes sir it may be different i i'm just i'm just giving you an example so actual registration they can verify with the uh sub-register because if if you are going to register your final degree then among the blood relations then we are paying only two percent or something like that so it depends upon the thing what is the legal value of a notarized sale deed there's always the registered sale deed registered sale deed and there's always uh notarized sale deed notarized sale deed it is not authorized because the notary has to see that any document executed before him is in accordance with the established principles of law yeah supposing if you take for example if a will is registered will is executed before a notary and he has notarized the will the when he is when the will is challenged in a court of law then the notary has to procure all the documents which is which is which is maintaining in his office like the bound register what is the date of execution the copy of the document the execution of the dates everything he has to make it in a bound volume it should be properly audited if he's able to vouch the entire uh happenings before the court of law then the notarized will can be accepted but not in the case of sale deed because 17 a has been properly registered has been amended that it should be registered any value of rupees 100 a sub register office has been created then the when the thing has to be done in a particular manner then it has to be done in a particular way we cannot give the other legalized things to the hands of the notary yes that even otherwise in law also we say that if the rule prescribes for a particular manner it has to be done in that manner alone and no other manner alone yes yes like an election petition they say that you cannot tinker with the procedure prescribed with that this is how much is for the will execution and is there any limit of maximum witnesses uh witnesses is two or more witnesses so normally two is mandatory as regards time duty because even a will can be unregistered will the problem is that the will has to be proved by way of the examining the witnesses concerned so uh registered will i think the depends upon the property and the area where it situates uh what is the difference between execution and registration execution see supposing if already i started in an example supposing if the a is a seller and b is the purchaser if they enter into a sale deed on 22 2021 that is the date of execution the witnesses have signed and they have executed it in order to register the same before the concerned register it has to be executed and registered before the competent authority name is the sub-register office uh within four months so that is the Tamil Nadu government rules i already read out the penalty 25 percent and other things of the they come late by after the execution uh then they have to pay the penalty so registration is the complete absolute procedure wherein the property is conveyed from one person to other and it is a notice to the entire world so that is the process yes what is the validity of an unregistered will validity of the will the unregistered that i have already sold the will need not be registered it is not mandatory that it should be registered even if it is unregistered if the disposition is in accordance with the administrator wish and in according to this self-acquired property then there is no harm in uh proving the same supposing if he is executing a will ancestral property to the third party that of a financier living alone all the legal hares to suffer then it is a suspicious circumstances then it has to be challenged before the court of law so uh registered will takes a pride over the unregistered will because it is sanctity that it is registered in the proper and proper way the administrator has come to the registrar office the witnesses has come to the registrar office proper rules inscribed by the concerned state governments has been complied the intention of the legislature has been complied this this will call out some of the litigations in future so if it is a registered will it will uh supposing if we if you are a legal practitioner if somebody comes and tell you i want to execute a will then your advice will be to get it registered it is not you cannot advice that you go for an unregistered will so we have to see the future consequences also yes well is usually prone to disputes yes uh among unknown and non-legal hares would it be wise for the testator while being alive to execute a conditional will will need a gift to it so it's legal hares to avoid future all future disputes yeah these are the intention of the testators supposing if the a testator comes to a come a legal practitioner and says i want to register this i want to give this property to a b and other my legal hares then you can give the proper advice to the testators that say you please mention what is the property that has to be allocated to a or b if there is any disproportionate allocation then naturally there will be a challenge to the will wherein the l rs will be fighting before the vote of love or rears together and they will leave their peace of mind then it will be settled by finally yes yeah my registered wills are still being questioned in court if it is if the will is registered then why still they are being questioned oh i i don't follow the question sir if the will is he's trying to say that once it is registered it has witnesses then how still you can challenge that will that it's not a win in accordance with law no no the will has to be proved we have to examine two witnesses supposing if the two witnesses comes and say before the vote of love that the testator has signed the will in my presence and we do also sign in his presence and it has been executed then it is it has to be held that it is proved unless the otherwise suspicious circumstances are raised by the difference or other legal hares then where is the question of challenging the wills once it is registered even if it is not challenged it has to be proved in the court of law by examining the concern but at least one of the witnesses yes i registered sale agreement with physical possession handed over to the buyer stipulated time is one year for completion of sale what is the legal sanctity on the parties yeah you can go for protecting the property 53 a can be used only as a shield not as a sword so that position has the honorable supreme court has laid down only thing what is that who is the who is the defaulting party in execution after one year has to be seen if supposing the the seller is prolonging the matter and achieving his part on the part of the contract to be done then naturally the buyer has to approach the court of law by ensure by pressing for their specific performance yes how to make a will as a public will document during the lifetime of a testator yeah it has been registered if it is registered it's a public document you can also show to the legal ares also see i have written a will it is registered so on so that unless there is other problems emanating if he has a fear in mind that there there will be some disturbance of peace then it is his liberty to execute or to make it open yes once it is registered it is left open yes in case the executor is hospitalized can he ask the doctor or nurse to sign as a witness normally it cannot take its course but if the circumstances warrant supposing if the person is in the fag end of the these are all peculiar cases i think this question is germinated because of the presence in here yes supposing if that rare situation comes it is for the parties to prove that the so-and-so was admitted in the hospital and he was in the treatment and the doctor has also to be called upon why whether he is suffering from such a ailment whether it is the death bit at that time there is no other go there is no time shot to call any other individual witnesses so the nurse or the other thing has been used to sign the document it can be proved in the these are the ways supposing if it is a normal disposition then it will take its own course unless if it is goes for a other way out of route then it will be a sir ordered by circumstances suspicious circumstances yes is there a provision to duly summon the sro for how is it to register will of a testator who might be bedridden yeah that can be done but normally if a person is dead sir is in the death bed or is in the not in the portion to move out of it there is a sound mind but only chronic in physical movements then witnesses are present then an application may be given to the suppressor he can come to the in such circumstances sro can also be called upon to say what happened yes that can also be done yes yeah can a beneficiary will be one of the witnesses no normally that should not be because he can be but there will be a lot of challenges to that because he is the beneficiary he then there will be a defense as the defense lawyers are there they are what will be the defense only the procounder has made the testator to execute the will in his favor so he was the beneficiary the it itself proves so that will be an argument on the part of the defense so why to entertain such an arguments better to go for your independent witness the last question should have registered will must be proved in court even though there is no challenging yes yes already I told you that it should be it should be proved in the way to at least one witness should be called upon to execute to prove the same unless it is examined the will is with the court will not entertain yes so opposing if the original witness two of the two witnesses has passed away they cannot be procured then 69 takes its place yes since they are students also you will have to elaborate what is section 69 69 in the sense already I have dealt with the section elaborately 69 the register may be called upon in what circumstances the will was projected that may be a circumstances or we can switch over to 45 of the evidence that wherein the person acquainted with the witnesses of the witness the signature supposing if the one the one of the witnesses is x his son y may be acquainted with his father's signature supposing x is death the death certificate is produced in the court and someone is on he's pleaded to issue to the concerned son then the son may come and say yes it is my father's signature you see I am already having a registered document wherein the signature is found you can compare it if you have any doubt you send it to the experts so that you can see that there is a contemporary experience document is available that can be exercised yes so thank you Mr. Nagarajan and those who have certain doubts they can follow we had three sessions by Justin Rajiv Bhalla yesterday we had on the yes we had done on probate one on the yes you can watch those three parts to have more clarity because this was only procedural aspect to understand yes that is only the second situation this is the more on a procedural aspect and what balances could be there yes as I said both lawyers can enjoy if you do good drafting you can enjoy for the part of drafting if they are the lawyers will keep on earning during the testing times when the wills are sectoral on the challenge and tomorrow friends we would be having a session of jurisdiction territorial pecuniary and subject matter by justice Katie Sankaran do connect with us tomorrow at 5 p.m and Mr. Nagarajan we are so delighted to be able to explain the entire journey of the legal aspects as well as the pros and cons to safeguard ourselves thank you everyone stay safe stay blessed thank you thank you