Andhra HC (Pre-Telangana)
Tirunam Gurappa vs Naidu Ramana Reddy on 12 March, 1992
Equivalent citations: 1992(1)ALT628
ORDER P.L.N. Sarma, J.
1. Defendant is the petitioner in this revision. The revision is filed questioning the order of the Principal District Munsif, Srikalahasti, in O.S. No. 406 of 1988, in and by the terms of which it was held that Ex.A-1, dated 2-10-1978, is only an agreement to sell and not a sale-deed. The relevant facts are as follows.
2. Respondent-plaintiff filed the suit for specific performance of an agreement of sale dated 2-10-1978, which was marked as Ex.A-1. The defendant raised the objection that the document, Ex.A-1, is not an agreement of sale, but it is an out-right sale-deed in and by the terms of which the property was conveyed and that therefore the said document is inadmissible in evidence. The learned trial Judge held that the document is only an agreement of sale and not a sale-deed and therefore it is admissible in evidence. Questioning the said order this revision is filed by the defendant.
3. Sri P.S.Narayana, the learned counsel for the revision petitioner-defendant contended that a reading of the document makes it clear that it conveyed absolute rights in the property to the plaintiff and therefore it amounts to conveyance and the same, not being stamped or registered, is inadmissible in evidence.
4. To appreciate this contention it is necessary to extract the relevant recitals in the document, Ex.A-1. They are as follows:
5. The document not only contains, in the preamble, the description as 'agreement of sale' but also indicates the same while describing the executant. It is clearly stated that the executant was executing only an agreement of sale. Again, at the end of the body of the agreement and before the schedule it was stated that till then any agreement or any other conveyance was not executed in respect of the said property and the executant undertook to execute and register a sale-deed pursuant to the agreement of sale. It is true that the document contains a recital, as extracted above, to the effect that the executant sold the property and put the plaintiff in possession of the same. It also contains a further recital that thereafter neither the executant nor his heirs have any right in the property. But these recitals are not decisive by themselves. When a document is construed, the entire document will have to be looked into for ascertaining the intention of the parries. Each of the clauses by itself is not conclusive and the intention of the parties will have to be gathered on a reading of the entire document. On a reading of the relevant recitals which are extracted above, I am of the opinion that the executant intended to execute an agreement of sale and not a regular out and out sale-deed.
6. Sri P.S.Narayana, the learned counsel for the petitioner-defendant, contended, on the basis of the rulings in Hanumantha Rao v. Narayanaprasad, 1984 (1) ALT 158 and K.Santhakumari v. K. Suseela Devi, that the mere recital, that a regular sale-deed will be executed at a later date as and when the plaintiff demands for the same, does not take away the character of a document as being a sale-deed.
7. There is no quarrel with the proposition contended for by Sri P.S. Narayana. The judgment in K. Santhakumari v. K.Suseela Devi (2 supra) itself stated that in construing a document the cumulative effect of all the recitals contained therein will have to be taken into consideration to find out the intention of the parties to-the document. Neither the description of the document in the preamble nor the recital that a further document was contemplated to be executed by itself is decisive. The court will have to take into consideration the cumulative effect of all the recitals contained in the said document. Applying the aforesaid principles laid down by the authorities in construing the documents. I have no doubt in my mind that the document in question viz., Ex.A-1 is only an agreement of sale. Not only in the preamble but also in the body of the document the executant referred the same as agreement of sale and it also contemplated execution and registration of a further document pursuant to the agreement What is more the context in which the recital that a further document will be executed and registered in favour of the plaintiff leaves no doubt in my mind that it is an agreement of sale. I have already extracted the particular portion of the document in the foregoing paragraphs. While stating that the executant has not executed any agreement, etc., in favour of any other person with reference to the said property it was stated that he has executed the present agreement and also stated that he will execute, pursuant to the present agreement, a regular sale-deed as and when called upon to do so. As I have already stated, there is a recital in the body of the document that the petitioner whole-heartedly sold the property; but that by itself is not decisive. As stated above, on a reading of all the recitals in the document, extracted above, I hold that the document in question is only an agreement of sale and not an out-Tight sale-deed, in an unreported judgment of this Court in GR.P. No. 199 of 1959, dated 3-11-1959, Satyanarayana Raju, J., (as he then was) held as follows:
"The document apart from its title which, of course, is not always conclusive, provides for the execution of a sale-deed at a future date after obtaining the permission of the District Collector which is obligatory under Section 47 of the Tenancy Act. The fact that the document is for delivery of the land is not decisive on the question as to whether the document is a sale or a mere agreement to sell. On the recitals contained in the document-I have no doubt that it is a mere agreement to sell and not a sale-deed."
8. In Hanumantha Rao v. Narayanaprasad (1 supra) the recitals of the document in question therein were not extracted. In that decision the learned Judge stated that a mere recital, that a regular sale-deed will be executed at a later date, does not take away the character of a document as being a sale-deed, and that decision has no application to the facts of the present case. Such a recital coupled with the other recitals in the document in question in this case, referred to above, led me to the conclusion I reached as indicated above. Similarly, in K. Santhakumari v. K Suseela Devi (2 supra), on a consideration of the recitals in the document- which fell for consideration in the said case, the learned Judge felt that it is a sale-deed.
9. Sri P.S. Narayana, the learned counsel, also placed reliance on a decision of the Supreme Court in Kashinath Bhaskar v. Bhaskar Vishweshwar, for his contention that if a document by itself creates an interest in immovable property and that the same contemplates execution of a further document, it will not be exempted from registration under Section 17(2)(v) of the Registration Act. The said case has no application to the facts of the present case. That was a case where two mortgages were sought to be assigned by a document to the plaintiff therein and the plaintiff sought to enforce the same. The learned Judges., while considering the said case, held that the document itself viz., assignment of the mortgage, creates interest in the property and therefore requires registration irrespective of the fact whether it contains a further clause contemplating the execution of another document. That has no application to the facts of the present case. The question in the present case is whether the document viz., Ex.A-1, sought to be relied upon by the plaintiff is an agreement of sale or an outright sale-deed. If it is construed as an agreement of sale, the question of creating any interest in the immovable property does not arise. If it is construed as a sale-deed, necessarily it creates interest in immovable property and it will not be admissible in evidence for want of both stamp duty as well as registration. The learned counsel for the petitioner also relied upon a judgment of the Madras High Court in P.M. Unni v. M.J. Nadar, AIR 1973 Madras 1. The learned Judges in the said case, on a consideration of the recitals of the document placed before them, came to the conclusion that the same constitutes a conveyance of the properties and the clear intention of the executant was mentioned in the form and guise of an affidavit.
10. On a consideration of the recitals contained in the document in question (Ex.A-1) and the principles laid down by the decisions aforesaid, I am of the view that the intention of the parties to the document is only to execute an agreement of sale and therefore I hold that Ex.A-1 is only an agreement of sale. Accordingly, the Civil Revision Petition is dismissed. No costs.