Fundamental Rules of Pleading and Conveyancing notes — Unit 1

A lawyer is only as good as their drafting. Drafting is the art of translating the intentions of the parties (or the claims of a client) into precise, unambiguous legal language. It forms the bedrock of both litigation and corporate practice.

⇒Pleading vs. Conveyancing

• Pleading: Drafting of formal written statements filed in a Court of Law. It includes the Plaint (filed by plaintiff) and the Written Statement (filed by defendant). It is governed strictly by the Civil Procedure Code (CPC).
• Conveyancing: Drafting of documents that transfer (convey) rights or property from one living person to another (e.g., Sale Deed, Lease Deed, Mortgage). It is governed by the Transfer of Property Act and the Indian Registration Act. It happens outside the court.

Order VI, Rule 2 of the CPC lays down the "Four Golden Rules" of Pleading. Every plaint and written statement MUST strictly adhere to these.

⇒The Four Golden Rules

• 1. Pleading should state facts and NOT law.
• 2. The facts stated should be material facts ONLY.
• 3. Pleading should not state the evidence by which the facts are to be proved.
• 4. The facts should be stated in a concise form.

Let's break down each of these rules in detail.

It is the duty of the parties to state the facts of their case. It is the duty of the Judge to apply the law to those facts. Therefore, you should not cite sections, acts, or case laws in your pleading.

⇒Illustration

Incorrect (Pleading Law): "The defendant is liable to pay damages for defamation under Section 499 of the IPC and under the law of torts because the statement was per se defamatory."

Correct (Pleading Facts): "The defendant published an article on 1st Jan in 'XYZ Magazine' stating that the plaintiff is a thief. This statement is false and has lowered the plaintiff's reputation among his peers."

What is a 'material fact'? A material fact is a fact which is absolutely essential to formulate a complete cause of action. If you remove a material fact from the pleading, the case collapses.

⇒Why only material facts?

To save the court's time and to prevent the opponent from being taken by surprise. You cannot plead unnecessary background stories or emotional drama.

⇒Illustration

In a suit for breach of contract, the fact that a contract was signed on a specific date is a material fact. The fact that the plaintiff was wearing a blue shirt when he signed it is an immaterial fact and must be excluded.

This is the most misunderstood rule by junior lawyers. There is a difference between Facta Probanda (the facts to be proved) and Facta Probantia (the evidence by which they are proved).

Rule: You must plead Facta Probanda (Material Facts). You must NOT plead Facta Probantia (Evidence).

⇒Illustration

• Fact to be proved (Material Fact): "The defendant was driving at a high speed of 100 km/h in a residential zone."
• Evidence (Do not plead): "The plaintiff's neighbor, Mr. Sharma, saw the defendant speeding, and there are skid marks measuring 50 feet on the road."

You state the fact (speeding) in the plaint. You bring Mr. Sharma to court later during the trial to prove that fact. You do not write Mr. Sharma's name in the pleading.

The pleading must be drafted with precision, brevity, and clarity.

⇒Formatting Rules (Order VI)

• The pleading shall be divided into paragraphs.
• Paragraphs should be numbered consecutively (1, 2, 3...).
• Each allegation should, as far as convenient, be contained in a separate paragraph.
• Dates, sums, and numbers shall be expressed in both figures and words (e.g., "Rs. 50,000/- (Rupees Fifty Thousand only)").

(Avoid long, winding, Victorian-era sentences. Use plain English).

What if you make a mistake in your plaint or forget to add a material fact? The CPC allows you to amend your pleading, but with strict conditions.

⇒The Rule

The Court may at any stage of the proceedings allow either party to alter or amend his pleadings... and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.

⇒The Proviso (Restriction)

No application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

(Furthermore, an amendment cannot change the fundamental character/nature of the original suit).

Conveyancing is the art of drafting deeds (like Sale, Lease, Mortgage) which transfer property rights. Unlike pleadings, which are adversarial, conveyancing documents are usually collaborative and aimed at creating a binding record of an agreement.

⇒General Principles

• Clarity of Title: The document must clearly trace how the vendor got the property (history of title).
• Description of Property: The property must be described so accurately (with boundaries: North, South, East, West) that a stranger can identify it.
• Consideration: The exact amount of money changing hands and the mode of payment (Cheque/DD/Cash) must be explicitly stated.
• Competency: The document must establish that the parties are competent to contract (major, sound mind).

Most conveyancing deeds (like a Sale Deed) follow a traditional structure consisting of several formal parts:

• 1. Title of the Deed: (e.g., "DEED OF SALE").
• 2. Date and Place: (e.g., "This deed of sale is made at New Delhi on this 15th day of July, 2023").
• 3. Parties: Description of the Vendor and Purchaser (Name, Age, Parentage, Address).
• 4. Recitals: The background story. Why are they executing this deed? How did the vendor acquire the property?
• 5. Testatum (Operative Part): The actual transfer clause (e.g., "Now this deed witnesseth that in consideration of Rs. 10 Lakhs, the vendor hereby sells and conveys...").
• 6. Habendum: Defines the exact estate being transferred (e.g., "To have and to hold the property absolutely and forever").
• 7. Covenants: Promises made by the parties (e.g., Covenant of quiet enjoyment, covenant against encumbrances).
• 8. Schedule of Property: The exact physical description and boundaries of the property.
• 9. Testimonium & Execution: Signatures of parties and attesting witnesses.

⇒Summary of Master Concepts

• Pleading: Governed by CPC (Order VI). Used in court.
• Conveyancing: Governed by TP Act. Used to transfer property rights.
• Four Golden Rules: (1) State Facts, not law. (2) Material facts only. (3) No evidence. (4) Concise form.
• Amendment (O.VI, R.17): Allowed to determine real controversy, but generally barred after trial begins.
• Parts of a Deed: Title, Parties, Recitals, Operative Part, Schedule, Execution.

⇒University Exam Tips for this Unit (Premium Advice)

• Facta Probanda vs Facta Probantia: This is a guaranteed short note question. Clearly explain the difference using the 'speeding vs skid marks' or 'murder vs bloody knife' illustration. Always state that Facta Probanda is pleaded, Facta Probantia is excluded.
• Order VI Rule 17: When discussing amendments, you MUST mention the proviso restricting amendments after the commencement of trial. This shows practical knowledge of the 2002 CPC amendments.