Andhra HC (Pre-Telangana)
Marthala Ramachandra Reddy vs Mutyalapati Pedda Subbanna @ Venkata ... on 10 November, 2005
Equivalent citations: 2006(1)ALT132
ORDER P.S. Narayana, J.
1. This court ordered notice before admission on 6-10-2005 and granted interim stay for a limited period. In pursuance there of, Sri Seetha Ram, learned counsel entered appearance on behalf of the first respondent. The matter was argued at length by both the learned counsel at the stage of admission and hence, the matter is being disposed of finally.
2. The revision Petitioner, M. Ramachandra Reddy-second defendant in O.S. No. 93 of 2000 on the file of the Senior Civil Judge, Proddatur, had preferred the civil revision petition against the order, dated 18-8-2005 made in the above said suit relating to the admissibility of a document, dated 7-2-1976. The controversy between the parties is whether the document in question is an agreement of sale or an un-registered sale deed. The learned Judge came to the conclusion that the said document can be relied upon for collateral purpose, but, however, on payment of stamp duty and penalty. Aggrieved by that portion of the order holding that it is an unregistered sale deed and not an agreement of sale and the same can be relied upon for collateral purpose subject to the condition of the payment of stamp duty and penalty, the civil revision petition is filed.
3. Sri L.J. Veera Reddy, learned counsel representing the revision petitioner had placed strong reliance on the decision in Bondar Singh and Ors. v. Nihal Singh and Ors. and would contend that in the light of the said decision, the document in question can be looked into for collateral purpose and hence, the stamp duty and penalty need not be levied. The learned counsel also relied upon the decision of the Division Bench of this Court in A. Kirshore @ Kantha Rao v. G. Srinivasulu 2004 (2) An.W.R. 1 (A.P.) : 2004 (3) ALD 817 (D.B.).
4. Per contra, Sri Seetha Ram, learned counsel representing the first respondent/ plaintiff would submit that as per the recitals of the document, all the rights were transferred, coupled with the payment of total consideration to be enjoyed absolutely and the mere fact that there is a recital that a registered document would be executed on demand, would not alter the situation in any way. The learned counsel would maintain that the document can be definitely looked into for collateral purpose, but even if it is to be relied upon for collateral purpose, the payment of stamp duty and penalty is mandatory. The learned counsel placed strong reliance on the decision of this Court in Banguru Ramathulasamma v. Yedem Masthan Reddy .
5. Heard the learned counsel.
6. As can be seen from the recitals of the document in question, the entire sale consideration was paid and possession also was delivered and the property can be enjoyed with absolute rights and it was specified that the seller or the heirs will have no manner of right in the property, but, however, it was also specified in the document that the first respondent/plaintiff herein agreed to execute a registered sale deed as and when required. There cannot be any doubt or controversy that the document in question can be looked into for collateral purpose. The decision of the Apex Court in A. Kirshore @ Kantha Rao v. G. Srinivasulu (supra -2) may be referred to in this regard. The parties also are not in serious controversy as far as this legal position is concerned. In K. Santha Kumari v. K. Suseela Devi a learned Judge of this Court held that in construing an instrument in order to decide whether it is an agreement to sell or a sale the cumulative effect of all the recitals contained therein and the relevant facts have to be taken into account. The mere offer to execute and register a sale deed at a later date does not take away the effect of a clear recital transferring the title and interest of the vendor to the vendee or change the character of a document from a sale to an agreement to sell. The mere use of the word 'agreement' is not conclusive also. The learned Judge relied on Skinner v. Skinner AIR 1929 P.O. 269 and also the decision in C.R.P. No. 199 of 1959, dated 3-11-1959 (A.P.).
7. The learned Judge of this Court in Banguru Ramathulasamma v. Yedem Masthan Reddy (supra-3) held that simply on account of the fact that the document is styled as an agreement of sale and also on account of the fact that execution of future registered document, such document cannot be considered as agreement of sale. Disputed document extinguishes right of vendor in the immovable property and creates such right in favour of vendee. Finding of Lower Court considering document as agreement of sale is erroneous and cannot be sustained. Disputed document is to be considered only as a regular sale deed and not a mere agreement of sale. Since not duly stamped and registered under Section 17(b) of the Registration Act it cannot be admitted in evidence. In K. Sarojamma v. G. Muni Lashamma and Ors. 1981 (2) ALT 57 (NRC) : 1981 (6) LS 265 a learned Judge of this Court held that the fact that the entire consideration was paid and the land was put in possession and the words "that the vendee shall from the date of the document have complete control over the property and enjoy the same with full rights' are not determinative of the question that the document constitutes a contract of sale. The essential element is that the document must transfer immoveable property or an interest therein which should be inter vivos so as to constitute conveyance within the meaning of Section 2(1) of the Stamp Act, in other words there should be vesting of title in one and divesting from the other who gave up title. This is the cost of conveyance. Even on construction, if the document though unregistered should be deemed to be a sale deed, it would nevertheless be admissible in evidence within the meaning of the proviso to Section 49 (c) of the Registration Act, if the party has agreed to execute a formal deed of conveyance which would be specifically enforceable by serving the same from the rest of the document. It was also held that in this case the document do not cause complete devestiture. From the start to the finish, it echoes with an assurance that it is an agreement to sell and whenever the executant is called upon at the expense of the vendee the document of sale shall be executed and registered which makes the intention of the parties quite manifest.
8. This view no doubt is contrary to the views expressed by the other two learned Single Judges referred to supra.
9. Reliance also was placed on the decision of the Madras High Court in Ramachandra Naidu and Anr. v. Ramayya Naidu wherein the decision of the Full Bench in Subramanian Chettiar v. Arunachalam Chettiar AIR 1943 Madras 761 was relied upon. Further reliance was placed on the decision of the Full Bench of the Madras High Court in Chief Controlling Revenue Authority Board of Revenue, Madras v. B. Thirthalu (F.B.) and also a decision of a Full Bench of this Court in Gadiraju Sanyasi Raju v. Kandula Kamappadu (F.B.).
10. The rigor of payment of stamp duty and penalty cannot be escaped even if it is for collateral purpose. On a reading of the recitals of the document in question, it is clear that the vesting and divesting of the absolute rights were in fact completed, but, however, the execution of a regular registered sale deed, on demand, alone had been left over between the parties. It may be that on the strength of such document, for the purpose of obtaining a regular registered sale deed, a suit for specific performance may be maintained, but, the same test cannot be extended for the purpose of determining whether the document in question is liable for stamp duty and penalty. That is the limited question, which is being canvassed before this Court.
11. The opening words of Section 35 of the Stamp Act "No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped" would clarify the position.
12. In the light of the same, this Court is of the considered opinion that the impugned order does not suffer from any illegality, but, however, it is brought to the notice of this Court that by the levy of the stamp duty and penalty, the revision petitioner is seriously prejudiced. It is needless to say that the revision petitioner is at liberty to take such steps for the purpose of getting the document impounded in accordance with law. Except giving this liberty, no other relief can be granted.
13. With the above direction, the civil revision petition is disposed of. No order as to costs.