Introduction:
Conveyancing in India has evolved, and words like, 'Qabuliyatnama', 'Jagirdar', 'Muafidar' and 'Charpatra (Redemption of rent)' etc., are occurring from ancient days in the Indian literature. In India, the forms of conveyancing are based on the present-day English forms and are more transaction specific in nature as compared to the ancient one. Thus, as in England and so in India, too, there are two types of Deeds, (i) Deed Poll and (ii) Indenture.
It has been rightly said, "deeds are instruments, but all instruments are not deeds." Deeds are of various forms, and they are usually classified as unilateral deeds or bilateral deeds or multilateral deeds. The deeds which are made only by one party are known as Deed Poll and they are generally drafted in first person. Those deeds wherein there are two or more parties involved are called as Indentures.1
Instruments like Bonds, Power of Attorney, Wills, Mortgages, Sale and Gifts can also be unilateral and so these are 'Deed Polls', while a deed of Lease is a bilateral document to be executed by the Lessor and Lessee both and so it is an Indenture.
In this article, the aim is to analyze the ancient concept of Deed Poll over which various present day legal instruments are based and interpreted.
Analysis:
As the old practice in England was to indent or cut a document which indicated towards executant of the deed; and when deed was polled or cut at the top or at the bottom it was known as 'Deed Poll'. It was called Deed Poll or single deed because it was executed by one party only. A bond, a power of attorney, and a will are the best examples of Deed Poll. Deed Poll is an executed contract of conveyance made by the vendor or grantor alone.
A Deed Poll is a deed made by and expressing the active intention of one party only or made by two or more persons joining together in expressing a common active intention of them all. A deed poll is so called because the parchment required for such a deed has usually been cut even or polled at the top. An indenture is a deed to which two or more persons are parties, and which evidences some act or agreement between them other than the mere consent to join in expressing the same active intention on the part of all. An indenture derives its name from the fact that the parchment on which such a deed was written was indented or cut with a waving or indented line at the top. It is pertinent to note that the terms Indenture' and Deed Poll have passed out of use over the time and more specific terms are used for instruments reflecting their purpose.
Style of Drafting a Deed Poll and an Indenture:
A Deed Poll is usually drafted with the expression, "Know All Men by These Presents‟ or "To whomsoever it May Concern‟ or straightway "I, so and so, Send These Greeting or Presents", while in an Indenture deed, the opening words are – "This Indenture of..........‟ or "This Deed of........." or "This Instrument of........." etc. Documents like Power of Attorney, Bonds, Gift etc. are based on the concept of Deed Poll.
Below mentioned are some cases of Indian jurisprudence that explains the same:
- In the case of Dasam Vijay Rama Rao vs. M. Sai Sri2 (17.06.2015 - HYHC), reference was made that the expression "Power of Attorney" has been defined in the Strouds Judicial Dictionary as an authority whereby one "is set in the turn, stead, or place of another" to act for him. It is generally made by deed poll.
- In the case of The Bengal Paper Mills Co. Ltd. vs.
The Collector of Calcutta and Ors. 3
(11.08.1976 - CALHC), the court referred to the definition of
'bond', according to Halsbury, is that it is:
"An instrument under seal, usually a deed poll, whereby one person binds himself to another for the payment of a specified sum of money either immediately or at a fixed future date".
- The Delhi High Court in the case of Nangia Construction India (P) Ltd. vs. National Buildings Construction Corporation Ltd. and Ors4 . (23.04.1990 - DELHC) held that the bank guarantee in the instant case, is a unilateral document, having been executed only by the bank. It is in the nature of a Deed poll, and its terms indicate that it is in accord with the provisions of section 126 of the Contract Act.
- In Commissioner of Stamp Duties (NSW) vs.
Simpson, (1917) 24 CLR 2095 Barton J.,
citing Viscount Haldane in Lumsden vs. Inland Revenue
Commissioners6 , [1914] AC 877, stated the
following:
"The duty of Judges in construing Statutes is to adhere to the literal Construction unless the context renders it plain that such a construction cannot be put on the words. This rule is especially important in cases of Statutes which impose taxation. The Court in Simpson case sought to determine whether a deed poll constituted a settlement for the purposes of Section 49 of the Stamp Duties Act, 1898 (NSW). Section 3 which defined the word settlement as meaning any contract or agreement was examined. The Court by adopting a strict literal approach held that only a contract or an agreement could constitute a settlement and that Section 49 providing for deed poll was not applicable and therefore, the taxpayer did not have to pay any stamp duty". This highlights the essentials of a Deed Poll to be a single-party transaction on contrary to the requirement of more than one party as essentials of a contract.
" - In the Bombay High Court Case of Abdul Rajak vs.
Bai Jimbabai Lnind 7 (1911 BOM 163), the
Suit was filed to avoid a duly registered Deed Poll dated 12th
February,1904 executed by Sidick and his Son Mahomed reciting how
the properties of which Sidick was sole owner were to be
distributed and a detailed succession was mentioned. The prayer of
the plaintiff was that the settled properties may be declared to
belong absolutely to Mahomed and that the Deed Poll may be declared
to be void and contrary to law as it was not acted upon or given
effect by the settlors mentioned therein. The court held
that:-
"There can be no question upon the evidence as to the dominion of the settlors over the properties in suit at the date of the deed poll. The de facto control was with Haji Saboo Sidick, the ostensible ownership by registered deed was with Mahomed. These two settlors, after executing the deed poll, proceeded to the registration office and caused it to be recorded there.... The deed poll was the result of much consideration and consultation by the attorneys of the firm to which he belonged, which consideration had commenced at least as early as the beginning of 1903. The deed poll was attested by Messrs. Gulabchand and Dadachanji, solicitors of this Court, residing in Bombay, who were members of the firm by whom the deed poll was prepared."
The Bombay High Court clearly stated that the retention and disregard of the deed by the settlors cannot defeat the claims of the beneficiaries under it and even the execution of the same was fairly obtained. The claim by the plaintiff was rejected and the Deed Poll was held to be valid.
- In the Bombay High Court case of Beach Towers
Condominium & Dhirajlal Dipchand Shah vs. Bombay Dyeing &
Manufacturing Company Limited (2012)8, the
court while dealing with the issue of limitation considered the
'Deed Poll' of the year 1980 which was registered by the
Deed of Confirmation in 1983, self-declaring a formulated scheme
for the use of all four plots executed by Bombay Dyeing more
particularly described therein. The court further stated
that:-
"In the individual flat purchase agreements there is an express reference to the conveyance on 17th August 1983 and to the existence of Beach House on Plot No. 1286A, the swimming pool on 1287C and the garden on 1287D; with the further confirmation that the garden and swimming pool are for the exclusive use of the Beach House and for no part of the Beach Towers property. This is said to be a covenant running with the land" .... make it clear that they had knowledge of the conveyance and the covenants as also of the Deed Poll. "The restrictions in the Deed Poll of 28th March 1980 specifically preserve to Bombay Dyeing and for the use of Beach House the swimming pool plot and the garden plot and other lands in the Beach Tower plot". The Condominium was born with these covenants and restrictions; they were not later imposed. Each apartment owner took his apartment subject to those covenants and restrictions."
As held by the court, it is pertinent to note that a Deed Poll recoding the covenants running with the land was held to be valid.
Conclusion
On perusal of the abovementioned case laws, we understand that concept of Deed Poll still subsists and the courts in India have upheld it time and again subject to its content. However, the case laws as detailed hereinabove highlight two major observations. First, Deed Polls that were upheld like in the cases of Beach Towers Condominium & Dhirajlal Dipchand Shah vs. Bombay Dyeing & Manufacturing Company Limited9 and Abdul Rajak vs. Bai Jimbabai Lnind10 were executed in the 19th century and second, present day documents such as power of attorneys, declaration etc. are based upon the concept of Deed Poll as reflected in the case of Dasam Vijay Rama Rao vs. M. Sai Sri11 .
Further, the analysis of legal jurisprudence highlights the fact that the concept of Deed Poll is not widely used at present as it was used in 18th and 19th century India and now there are various transaction specific documents which have evolved over time owing to the needs of the parties involved and specificity of each transaction. Documents such as Affidavits and Bonds are still prepared in the form of a Deed Poll. Further, there is no bar on a Deed Poll being executed for conveyancing documents such as Release Deeds and Power of Attorneys. The format of Deed Poll is relevant in respect of Release Deeds, as there is a unilateral release of the rights vested in the releasor in favour of the releasee, and therefore, a Release Deed or Relinquishment Deed can be drafted either as a Deed Poll document or it can be drafted as a Deed wherein the releasor and the releasee both are made parties12 . However, we must bear in mind that documents such as Power of Attorney, Gift Deeds etc. are governed by specific laws and have certain set of specific essentials that are required to be incorporated therein in order for the document to be valid.
Footnotes
1 Dr. Medha Kolhatkar, Drafting, Pleading and Conveyancing, Chapter XVI, Page-1 (2nd ed- Kolhatkar, M., 2021).
2 C.R.P. No. 1621 of 2015, MANU/AP/0311/2015.
3 Matter No. 477 of 1973, MANU/WB/0079/1976.
4 MANU/DE/0348/1990 Nangia Construction India (P) Ltd. vs. National Buildings Construction Corporation Ltd. and Ors. (23.04.1990 - DELHC).
5 MANU/MH/0734/2015.
6 1914 2 S.L.T. 188, at p. 193.
7 1912 (14) BOMLR 295.
8 MANU/MH/0387/2017
9 Supra note 8.
10 Supra note 7.
11 Supra note 2.
12 Dr. Medha Kolhatkar, Drafting, Pleading and Conveyancing, Chapter XVI, Page-12 (2nd ed- Kolhatkar, M., 2021).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
