IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWETNY THIRD DAY OF APRIL TWO THOUSAND AND FOURTEEN PRESENT THE HON'BLE SRI JUSTICE R.KANTHA RAO
CIVIL REVISION PETITION No.953 of 2012
Between: Kalvala Yadagiri . PETITIONER/PLAINTIFF And Gorige Raju and another . RESPONDENTS The Court made the following:
THE HON’BLE SRI JUSTICE R.KANTHA RAO CIVIL REVISION PETITION No.953 of 2012
ORDER:
This Civil Revision Petition is filed under Article 227 of the Constitution of India against the order dated 13.12.2011 passed in I.A.No.457/2011 in O.S.No.75/2011 on the file of the Court of the Senior Civil Judge at Jangaon.
I have heard Sri Venkateswar Varanasi, learned counsel appearing for the petitioner/plaintiff and Sri Venkat Reddy Donthi Reddy, learned counsel appearing for the respondents/defendants.
The revision petitioner is the plaintiff and he filed the suit for specific performance of an agreement to sell dated 23.10.2010 in respect of a house property. The said document was sought to be admitted in evidence in an interlocutory application for injunction filed under Order 39 Rules-1 & 2 of CPC. It was recited in the said document that the purchaser has been in possession of the house as a tenant for the last 13 years running “Madhavi Printing Press”. As per the terms of the document, subsequent to the tenancy, there was an agreement between the parties whereunder the tenant agreed to purchase the house, he paid most part of sale consideration and an amount of Rs.50,000/- remained to be paid. It was also stipulated in the agreement that the purchaser need not pay the rents to the Vendor as he paid most part of the sale consideration under the agreement. It is however not mentioned in the agreement that the purchaser was put in possession of the property under the agreement.
The defendants contended that the document contained the recital that the possession of the property was already delivered to the purchaser who was residing in the said premises as a tenant; from the date of the subsequent agreement, the possession of the tenant was transformed into possession of a purchaser, and therefore, the document was liable to be stamped as a Deed of Conveyance. Thus, according to the defendants, without levying proper stamp duty and penalty, the agreement to sell dated 23.10.2010 cannot be admitted in evidence. The petitioner/plaintiff however contended that the document has to be treated as an agreement without delivery of possession and it being drafted on Rs.100/- value stamp paper, no further stamp duty and penalty need be collected on the document.
The learned trial Court expressed the view that the recitals of the agreement to sell and also the pleadings of the plaintiff indicate that the relationship of landlord and tenant was transformed into the relationship of Vendor and Vendee subsequent to the agreement and therefore, considered the agreement to sell as the document followed by delivery of possession and held that the agreement to sell dated 23.10.2010 is required to be stamped as a sale deed under Explanation-I of Article 47-A of Schedule 1-A of the Indian Stamp Act, and till then it cannot be received in evidence. The present revision petition is filed challenging the said order.
The point that arises for consideration in this revision petition is whether the order passed by the learned trial Court can be sustained in law?
Point:
Though several judgments were relied on by both the learned counsel in support of their respective contentions, I would like to refer the following judgments which are essential for disposal of the present revision petition.
In B.Ratnamala v. G.Rudramma[1] Division Bench of this Court while answering a reference in relation to the admissibility of a document in terms of Article-47A, Schedule I-A of Stamp Act 1899 and Sec.49 of the Registration Act, 1908 clearly held as follows:
“The delivery of possession should follow the agreement i.e., through the agreement. It takes in its sweep the recital in the agreement itself that delivery of possession is being handed over. It will also cover cases of delivery of possession contemporaneous with the execution of agreement, even if there is no specific recital in the agreement. In other words, the delivery of possession should be intimately and inextricably connected with the agreement. And agreements evidencing delivery of possession, if the document contains evidence of delivery of possession by a recital in that behalf, that is sufficient. Such delivery of possession can be prior to the date of agreement and need not be under the agreement. Therefore, it would follow that an agreement containing specific recital of delivery of possession or indicating delivery of possession even in the past is liable for stamp duty as a ‘sale’.”
[2]
In Avinash Kumar Chauhan v. Vijay Krishna Mishra the Supreme Court referring to Sec.35 of the Stamp Act, held as follows:
“The Parliament has, in S.35 advisedly used the words “for any purpose whatsoever”. Thus, the purpose for which a document is sought to be admitted in evidence or the extent thereof would not be a relevant factor for not invoking the provisions.
The unregistered deed of sale was an instrument which required payment of the stamp duty applicable to a deed of conveyance. Adequate stamp duty admittedly was not paid. The Court therefore, was empowered to pass an order in terms of S.35. The plea that the document was admissible for collateral purpose would not be tenable. Thus, order directing impounding of said document was not liable to be interfered with.
Section 35 of the Act rules out applicability of provision under S.49 of Registration Act, 1908 as it is categorically provided therein that a document of this nature viz., unregistered sale deed shall not be admitted for any purpose whatsoever. If all purposes for which the document is sought to be brought in evidence are excluded the document would not be admissible for collateral purposes.
In Omprakash v. Laxminarayan and others[3] the Supreme Court held as under:
“Though the defendants dispute the fact of giving actual physical possession to the purchaser by the seller, for determination of the question of admissibility of a document, it is the recital therein which shall be decisive. Whether the possession in fact was given or not in terms of the agreement to sell is a question of fact which requires adjudication. But, at the time of considering the question of admissibility of document, it is the recital therein which shall govern the issue. It does not mean that the recital in the document shall be conclusive but for the purpose of admissibility it is the terms and conditions incorporated therein which shall hold the field.”
In the case before the Supreme Court, it was recited in the agreement that property was transferred on payment of part of the consideration and the possession of the property was handed over to the purchaser by the seller.
In the aforesaid judgment, the Supreme Court pointed out that from a plain reading of Section 35 of the Stamp Act, it is evident that an authority to receive evidence shall not admit any instrument unless it is duly stamped. An instrument not duly stamped shall be admitted in evidence on payment of the duty with which the same is chargeable or in the case of an instrument insufficiently stamped, of the amount required to make up such duty together with penalty.
The learned counsel appearing for the petitioner invited the attention of this Court to Section 49 of the Registration Act 1908 which reads as follows:
“Sec.49: Effect of non-registration of document required to be registered:- No document required by Section 17 or by any provisions of the Transfer of Property Act, 1882 to be registered shall;
a) affect any immovable property comprised therein, or
b) confer any power to adopt; or
c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered;
Provided that an unregistered document affecting immovable property and required by this Act, or the Transfer of Property Act, 1882 to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 or as evidence of any collateral transaction not required to be effected by registered instrument.”
The learned counsel appearing for the petitioner argued that the document comes under the proviso to Sec.49 of the Registration Act and it can be admitted as evidence of a contract in a suit for specific performance or as evidence of any collateral transaction.
I absolutely see no force in the contention urged by the learned counsel appearing for the petitioner. In view of the judgments, referred to above, even if the document is sought to be admitted in a suit for specific performance or as evidence of any collateral transaction, it must be properly stamped. Sec.49 of the Registration Act deals with the effect of non-registration of documents required to be registered and lays down the exception in the proviso to the said section. The said proviso does not exempt any document from being properly stamped. Therefore, unless the document is properly stamped, it cannot be received in evidence even as evidence of a contract of sale in a suit for specific performance or as evidence in collateral transaction.
In view of the above, the view taken by the learned trial Court therefore is in accordance with law and the order passed by the learned trial Court does not require any interference in this revision petition.
The Civil Revision Petition is accordingly dismissed. No order as to costs.
Pending miscellaneous applications, if any, shall stand closed in consequence.
R.KANTHA RAO,J Date: 23.04.2014 Dsr
[1] 1999 (6) ALD 160 (DB)
[2] AIR 2009 SC 1489
[3] 2014 (1) ALD 83 (SC)