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.1897 of 2012
Between: Mandati Srinivas . PETITIONER/DEFENDANT No.3 And Gatla Raji Reddy and 2 others . RESPONDENTS The Court made the following:
THE HON’BLE SRI JUSTICE R.KANTHA RAO CIVIL REVISION PETITION No.1897 of 2012
ORDER:
This Civil Revision Petition is filed under Article 227 of the Constitution of India against the order dated 28.03.2011 passed in O.S.No.29/2008 on the file of the Court of the I Additional Senior Civil Judge, Warangal.
I have heard Sri V.S.R.Anjaneyulu, learned counsel appearing for the petitioner/3rd defendant and Sri P.Pankaj Reddy, learned counsel appearing for the 1st respondent/plaintiff.
The revision petitioner is the 3rd defendant in the suit. The 1st respondent/plaintiff filed the suit for specific performance of an agreement to sell dated 10.08.2005 and also for delivery of vacant possession of the suit property. In the course of trial of the suit, the plaintiff sought to mark the agreement to sell wherein it was specifically recited that possession of the property was delivered under the agreement. The revision petitioner and other defendants objected for marking of the document on the ground that it was insufficiently stamped.
It was argued by the plaintiff before the trial Court that though it was recited in the agreement that the possession of the property was delivered, in fact, possession was not delivered to him and therefore, it cannot be said that the document was insufficiently stamped.
The question before the trial Court was whether the agreement to sell was chargeable as a Deed of Conveyance.
The learned trial Court relied on a judgment reported in
[1]
Cheryala Srinivas v Moola Sujatha and others wherein it was held as under:
“The possession mentioned in Schedule I-A, Entry 47A, Explanation-I of Stamp Act 1899 must be effective, actual, and the one, recognized in law. Unless the party under the agreement has the benefit of possession of the property, without any dispute, or challenge, from a party to the agreement, he cannot be mulcted with the liability to pay the stamp duty, as though the document is a sale deed.”
The learned trial Court following the aforesaid judgment, took the view that since the possession of property was not actually delivered to the plaintiff, the agreement to sell cannot be charged with stamp duty as if it is a sale deed and accordingly, passed the impugned order observing that the document is an agreement to sell without delivery of possession and therefore, it can be admitted in evidence. The said order is challenged in the present revision petition.
The point therefore 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 have been cited by the learned counsel on either side, I would like to refer only the following judgments which are essential for disposal of the present revision petition.
[2]
In B.Ratnamala v. G.Rudramma 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’.”
In Avinash Kumar Chauhan v. Vijay Krishna Mishra[3] 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.
[4]
In Omprakash v. Laxminarayan and others 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 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 respondents 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 respondents 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.
Turning to the facts of the present case, it was specifically mentioned in the agreement to sell that the possession of the property was delivered to the plaintiff. For the purpose of considering the question as to whether the document was properly stamped or not, the recital of the agreement has to be taken into consideration. The contentions of the plaintiff that in fact the possession was not delivered to him and the revision petitioner/3rd defendant pleaded that the possession was delivered to plaintiff are not relevant for considering the issue as to whether the agreement to sell was properly stamped. Those questions will have to be adjudicated in the course of trial but for admitting the document they are not relevant. The learned trial Court therefore in the present case overlooked the settled legal position and took an erroneous view that the agreement to sell in question dated 10.08.2005 can be admitted in evidence. The learned trial Court ought to have considered the agreement to sell relied on by the plaintiff as Deed of Conveyance. Therefore, the said document cannot be received in evidence unless proper stamp duty and penalty is paid by the plaintiff thereon.
For the foregoing reasons, the impugned order passed by the trial Court dated 28.03.2011 in O.S.No.29/2008 is therefore liable to be set aside and accordingly the same is set aside.
Accordingly, the Civil Revision Petition is allowed. 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] 2010 (1) ALD 246
[2] 1999 (6) ALD 160 (DB)
[3] AIR 2009 SC 1489
[4] 2014 (1) ALD 83 (SC)