Andhra HC (Pre-Telangana)
Ponnapoola Seetha Ramaiah vs Sanagala Sreenivasulu on 27 September, 2012
Author: C.V. Nagarjuna Reddy
Bench: C.V. Nagarjuna Reddy
HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY C.R.P.No.1753 of 2012 27-9-2012 Ponnapoola Seetha Ramaiah Sanagala Sreenivasulu <GIST: >HEAD NOTE: Counsel for petitioner : Sri V. Roopesh Kumar Reddy Counsel for respondents : Sri G. Venkateswarlu ?CASES REFERRED: 1. 2010(5) ALD 819 2. 2010(1) ALD 246 3. AIR 2000 A.P. 167 (D.B.) ORDER:
This Civil Revision Petition is filed against order dated 22-2-2012 in I.A.No.626/2011 in O.S.No.159/2010 on the file of the learned V Additional District Judge, Nellore.
The respondent filed the above mentioned suit for specific performance of agreement of sale dated 7-3-2005. He filed the above mentioned I.A. to permit him to mark the said agreement of sale in evidence on his side. The petitioner/defendant filed a counter-affidavit opposing the same on the ground that the endorsement made on the back of the agreement of sale in question evidences delivery of possession of the property agreed to be sold thereunder and therefore it requires stamp duty and registration under Article 47-A of Schedule 1-A of the Indian Stamp Act, 1899 (for short "the Act"). However, the Court below has allowed the I.A. filed by the respondent/plaintiff. Feeling aggrieved thereby, the petitioner/defendant filed this Civil Revision Petition. A perusal of the order of the lower Court shows that it has relied upon the Judgments of this Court in Sri Lakshmi Housing Enterprises, Hyderabad Vs. Haji Begum and others1 and Cheryala Srinivas Vs. Moola Sujatha and others2 and held that since the possession of the property was not delivered at the time of entering into the agreement of sale, delivery of possession at a subsequent point of time does not render the agreement liable for registration and stamp duty.
In B. Ratnamala Vs. G. Rudramma3, a Division Bench of this Court has considered the Explanation to Article 47-A of Schedule 1-A of the Act and held that the words "followed by or evidencing delivery of possession" therein shall be construed as having a direct nexus to the agreement. The Division Bench further held that the said Explanation covers three situations, namely, where delivery of possession has occurred prior to entering of the agreement, under the agreement, or in pursuance of the agreement. The Division Bench also further held that the delivery of possession should be intimately and inextricably connected with the agreement. For better appreciation, the relevant portion of the Judgment is reproduced hereunder:
"... Thus the main question that falls for consideration is the interpretation of the expression "followed by or evidencing delivery of possession". These expressions cannot be read in isolation and one has to find the true meaning by reading the entire Explanation and more so in conjunction with the earlier expression i.e., "agreement". Even if these two expressions are looked independently, it means an agreement of sale followed by delivery of possession and an agreement to sell evidencing delivery of possession. In the first case, i.e., "followed by delivery", possession cannot be disjuncted from the basic source i.e., agreement of sale. Therefore, the expression followed by delivery of possession should have a direct nexus to the agreement and should be read in juxtaposition to the word 'agreement' and it cannot be independent or outside the agreement. Therefore, 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 in the second type, i.e., 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. If the Agreement records the fact that the possession was delivered earlier and such recital serves as evidence of delivery of possession, though prior to the Agreement, it falls under the second limb. Therefore, on a proper interpretation of the said expressions, 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' under the said Explanation."
In the instant case, it is not in dispute that the agreement, as it was originally drafted, did not contain the recital relating to delivery of possession of the property. However, on the back of the agreement, several endorsements were made relating to receipt of money by the respondent. Two endorsements were found against the date 28-5-2005. In the later endorsement, it is stated that on that day Rs.6,19,000/- was received towards the amount under the agreement and the property was delivered. This recital would clearly show that the delivery of possession has taken place a few months after entering into the agreement and in pursuance thereof. Thus, delivery of possession is directly connected with and traceable to the agreement of sale. Hence, the ratio laid down by the Division Bench of this Court in B. Ratnamala (3-supra) clearly applies to this case.
The Judgment in Sri Lakshmi Housing Enterprises (1-supra) turned on its own facts. In the said case, there was no recital in the agreement that the possession was delivered and there was also no evidence to show that the delivery of possession related to the agreement of sale. In Cheryala Srinivas (2-supra), there was a dispute as to the delivery of physical possession even though the agreement contained a recital in respect thereof. This Court has held that unless the party under the agreement has the benefit of possession of the property without any dispute or challenge from the party to the agreement, he cannot be mulcted with the liability to pay the stamp duty.
In the present case, there is no dispute relating to delivery of possession of the property. Hence, the Judgment Cheryala Srinivas (2-supra) has no application.
For the above mentioned reasons, the order of the lower Court cannot be sustained and the same is accordingly set-aside. The lower Court is directed to exclude the said document from the evidence. The respondent is however given liberty to seek for sending the agreement of sale in question for impounding and registration to the competent authority, if he is interested in producing the same in evidence.
Subject to the liberty given as above to the respondent, the Civil Revision Petition is allowed.
As a sequel, CRPMP No.2345 of 2012 is disposed of as infructuous. ________________________ Justice C.V. Nagarjuna Reddy Date : 27-9-2012