Legal Drafting · Chapter 3
Study notes aligned to the official NEB syllabus.
Private transaction documents (व्यक्तिगत कारोबारका लिखत) are the deeds used by private persons. People use them to deal with their own property and money. They sell land. They pledge land for a loan. They borrow on personal credit. They divide family property. They give property away by will. Court documents pass between a citizen and the state. These deeds are different. They record a bargain between two private persons. Even so, the law still requires them to be in a fixed written form. Many of them must also be registered. This is because they affect valuable and lasting rights.
The Muluki Civil Code 2074 (2017) is the general law here. It governs property, contract, partition and gift in Nepal. A draftsperson who prepares any of these deeds works within its scheme. One common thread runs through them all. Each deed must name the parties exactly. Each must describe the property or money precisely. Each must state that the parties act of their own free will (राजीखुसी). Each must be signed before witnesses and dated. Then the transaction cannot be denied later.
A sale deed (राजीनामा) transfers the ownership of property from a seller to a buyer. The property is usually land or a house. The buyer pays a price for it. The deed is made so the transfer is recorded in a clear and legally valid written form. Then there is no later doubt about who owns the property.
A sale deed must contain certain matters. It must name the seller (बिक्रेता) and the buyer (खरिदकर्ता) with their addresses and ages. It must describe the property fully. This means the plot number (कित्ता नं.), the area (क्षेत्रफल) and the four boundaries (चार किल्ला). It must state the price and that the price has been received. It must record that the seller has given up all his rights in the property. Then the buyer may hold and enjoy it as owner. The deed is signed by both parties before witnesses and dated. For immovable property it is registered in the Land Revenue Office (मालपोत कार्यालय). After that the buyer gets the holding mutated into his own name (दाखिल खारेज).
Here is an example. रामबहादुर owns a plot in Lalitpur. He agrees to sell it to हरिबहादुर for a fixed sum. A mere spoken promise would leave ownership uncertain. So the law requires a written राजीनामा. It is registered at the मालपोत. Then the land records themselves show हरिबहादुर as the new owner. No third person can be deceived about the title.
A mortgage deed is made when an owner raises money against his property. He charges the property as security. He does not sell it. In a usufructuary mortgage (भोगबन्धी) the owner hands the land to the lender. The lender holds the land and enjoys it. The income the lender takes from the land stands in place of interest. When the borrower repays the principal (साँवा) the land returns to him.
The deed must name the parties. It must describe the property and its boundaries. It must state the amount lent. It must record that the land is given in mortgage for that amount. It must set out the terms of enjoyment and of redemption (फिर्ता). A mortgage is useful for both sides. The owner gets money while keeping ultimate ownership of the property. The lender secures the loan against a real asset, not a bare promise.
Here is an example. रामबहादुर needs money. But he does not want to lose his field. So he gives it in भोगबन्धी to सीताराम. सीताराम farms the land and keeps its produce in place of interest. The day रामबहादुर returns the principal, the field comes back to him. This differs from a sale. In a sale ownership passes for good. It also differs from a simple धितो बन्धक. There the property is only charged as security, and possession may stay with the owner.
A loan deed or deed of bond without mortgage (कपाली तमसुक) records a simple money loan. The loan is made on the borrower's personal credit. No property is pledged as security. The deed must state the borrower (ऋणी) and the lender (साहू) with their details. It must state the amount borrowed in figures and in words. It must state the rate of interest. It must state the period within which the loan will be repaid. It must carry the borrower's promise to repay the principal with interest. It must record his consent to lawful recovery if he defaults.
There is no mortgage here. So the lender relies on the borrower's promise and on supporting documents. A careful deed, signed before witnesses, is the lender's main protection. Some documents are commonly attached with it. These include the citizenship copies (नागरिकताको प्रतिलिपि) of the parties and the witnesses' details.
Here is a common situation. रामबहादुर borrows a modest sum from सीताराम for a household need. He pledges nothing. Later he denies the loan. Now सीताराम has only the तमसुक and the witnesses to prove it. This is exactly why every essential term must appear on the face of the deed. These terms are the amount received, the interest and the repayment date.
A partition deed (अंशबण्डा) divides joint family property among the coparceners (अंशियार). A coparcener is a family member who has a right to a share. After the division each takes a separate share. Under the Muluki Civil Code 2074, members of an undivided family hold the family property jointly. Each coparcener has a right to claim his share. When they decide to separate, the division is recorded in a partition deed.
The deed must state certain matters. It must give the names and details of all the coparceners entitled to a share. It must give a full description of the property to be divided, both movable and immovable, with boundaries. It must give the share allotted to each person. It must state that from the date of partition each shall separately own and enjoy his own share. No one shall have a claim on the shares of the others. It is signed by all parties before witnesses and dated.
Here is an example. A father and his two adult sons decide to separate. The अंशबण्डा lists the house, the land and the movable property. It divides the property into the agreed shares. It records that each person thereafter holds his portion as sole owner. This prevents the bitter disputes that often follow an unrecorded family division.
A will (वकसपत्र) is a document by which a person gives his property to another. It takes effect according to its terms. Often it takes effect on the donor's death. The person making it must be of sound mind (होसहवासमा). He must make it freely. There must be no force (करकाप). There must be no fraud (झुक्यान). There must be no undue influence.
The deed must name the donor (वकस दिने) and the person receiving (वकस लिने) the property. It must describe the property given. It must state the donor's free will and sound mind. It must fix the time or condition on which the gift takes effect. A will with immediate effect (हालैको वकसपत्र) is a special kind. It takes effect at once, during the donor's own lifetime. It does not wait until death. This distinction matters. It decides when the receiver's right in the property begins. A will is signed before witnesses. Where the law requires, it is registered.
Here is an example. An elderly रामबहादुर makes a वकसपत्र. He leaves his house to his son हरिबहादुर. He directs that the son's ownership begin only after his death. Suppose instead he makes a हालैको वकसपत्र. Then the son's right begins at once, while रामबहादुर is still living. A will often operates when the donor is no longer present to explain it. So the deed must show plainly that he acted of sound mind and free will. Otherwise it invites a challenge.