PLEADINGS VS.
CONVEYANCE
DRAFTING, PLEADING, AND CONVEYANCING
Drafting, Pleading and Conveyancing are the three common
terms used in the law sector. Drafting refers to the act of
preparing the legal document like agreements, contracts and
deeds.
In drafting besides seeking right words, the draftsman seeks
the right concepts. Conveyancing refers to the transferring of a
real property to its new owner by means of deeds and whereas
pleading refers to a legal document filed in a law suit.
This can be a document pertaining to the initiation of litigation
or a document in response to this initiation.
PLEADINGS
According to Lord Halsbury – “Where system of pleadings may exist,
the sole object of it is that each side may be fully alive to the
questions that are brought to be argued in order that they have an
opportunity of bringing forward such evidence as may be appropriate
to the issue”.
MEANING:
The dictionary meaning of the term ‘plead’ means ‘to
state and argue a case’. Therefore, pleading comprises of
respective contentions of the parties in a dispute, which
are reduced into writing.
STATUTE:
When the civil codes came to be drafted, the principles of
pleadings were also given statutory form. Vide Order VI
Rule 1 “pleading” – shall mean plaint or written
statement.
STATUTE:
When the civil codes came to be drafted, the principles of
pleadings were also given statutory form. Vide Order VI
Rule 1 “pleading” – shall mean plaint or written
statement.
PURPOSE:
Pleading is the beginning stage of a lawsuit in which parties formally
submit their claims and defences. ‘Pleadings’, under Civil as well as
Criminal Law, meant that to determine what the parties were currently
fighting about.
In Civil proceedings the plaintiff submits a plaint stating the cause of
action -- the issue or issues in controversy. The defendant submits an
answer- the reply- the written statement- stating his or her defences and
denials. In other words it is nothing but the formal presentation of claims
and defences by parties to a lawsuit.
Therefore, it includes every legal document filed in a lawsuit, petition,
motion and/or hearing, including complaint, petition, answer/reply,
rejoinder, motion, declaration and memorandum of points and authorities
(written argument citing precedents and statutes).
ADVANTAGE:
• The whole object of pleadings is to give fair notice to each party of
what the opponent‟s case is. Pleadings bring forth the real matters
in dispute between the parties. It is necessary for the parties to
know each other‟s stand, what facts are admitted and what facts
are denied, so that at the trail they are prepared to meet them.
1. Pleadings also eliminate the elements of surprise during trail
besides eradicating irrelevant matters which are admitted to be true.
The facts admitted by any parties need not to be pursued or proved.
2. Pleadings save the parties much bother, expense and trouble of
adducing evidence in support of matters already admitted by a party,
and they can concentrate on their evidence to the issue framed by the
court in the lights of facts alleged by one party and denied by other
party.
3. Another advantage of pleadings is that parties come to know
beforehand what points the opposite party will raise at the trial and
thus are prepared to take them and are not surprised.
FUNDAMENTAL RULES OF PLEADINGS
UNDER CIVIL PROCEDURE CODE:
(1) Pleadings shall contain only statement of facts and not law.
(2) Pleadings shall contain material facts and material facts only.
(3) Pleadings shall state only facts on which the party pleadings relies
and not the evidence by which they are to be proved.
(4) Pleadings shall state such material facts concisely, but with
precision and certainty.
CONVEYANCING
Conveyancing is an art of drafting deeds and documents whereby any
title, right or interest in an immovable property is transferred from
one person to another. Such person can be natural or artificial i.e.
Corporate, the Company, the Society or the Corporate Sole as the
case may be.
PURPOSE:
It also means ‘instrument’ itself. Therefore, the term conveyancing
does not apply to the Court proceedings, rather it is applicable to the
instrument, which have been documented not for the purpose of
Court proceedings, rather for the purpose of creating evidence of a
particular transaction, which may be used before the Court in case of
any dispute.
STATUTE:
In India the forms of conveyancing are based on the present English
forms. No legislation in India has been ever passed on the law of
conveyancing. Both in India and England, there are two types of
deeds namely – “Deed Poll” and “Indenture”.
a) The deed poll is a document which is executed unilaterally in the
first person like bonds, power of attorney and will etc.
b) b) The Indenture is a document which is executed bilaterally or
consist of multilateral deed like mortgages, sale deed, gifts and
lease etc.
ESSENTIALS OF A DEED:
(1) The non-operative part: The non-operative part contains
description or name of deed, date of the deed, parties to the deed
and the recitals.
(2) The operative part: The operative part contains testatum or
premises, habendum, exception and reservations and covenants.
(3) The format part: The formal part contains testimonium, signature
and attestation, parcels of description of the parties
INDENTURE DEED
Pleading and conveyancing may be distinguished by simply stating
that while the pleadings are applicable to Court proceedings and
conveyancing is applicable to the documentation done outside the
Court and not meant for the Court proceedings particularly, though
they may be used in the Court proceeding, in order to substantiate a
particular contention, claim or submission.
