Andhra Pradesh High Court - Amravati
Gandu Pulla Rao, Guntur Dist vs G.Hari Prasada Rao, Guntur Dist 3 Others on 18 November, 2019
Author: M.Venkata Ramana
Bench: M.Venkata Ramana
MVR,J
CRP.No.4910 of 2016
HON'BLE SRI JUSTICE M.VENKATA RAMANA
CIVIL REVISION PETITION No.4910 of 2016
ORDER:
The plaintiff is the petitioner. The defendants are the respondents.
2. The petitioner laid a suit against the respondents for declaration of his right and title to the plaint schedule property and for consequential permanent injunction restraining the respondents from interfering with his possession and enjoyment of the same.
3. The respondents filed a written statement through the second respondent resisting the claim of the petitioner.
4. The property in dispute is stated to be an extent of 1329 Sq.yards of open site out of a total extent of Ac.2-26 cents. The petitioner claimed that he had purchased this entire extent, under a possessory agreement for sale on 09.08.1984 for Rs.4,60,000/- from the legal heirs of the original owners Sri Chalasani Sivanaga Basavaiah and Sri Gurrala Venkatarao. The respondents 2 to 4 are the purchasers of different extents from the first respondent under different sale deeds out of this land. It is claimed by the petitioner that, these sale deeds were executed against his interest and in an attempt to defraud him.
5. In the course of trial, the petitioner intended to mark the alleged possessory agreement for sale dated 09.08.1984. When it was objected to, on the ground that it is not registered, in terms of Section 17(i)(g) of Registration Act,1908 and having regard to its nature, the learned trial Judge by the impugned order, held that this MVR,J CRP.No.4910 OF 2016 2 document is inadmissible in evidence and that it did not fall within the exceptions under Section 49 of Registration Act,1908 to view the same for collateral purpose. It is against this order, the present Civil Revision Petition is preferred by the petitioner.
6. The learned counsel for the petitioner in this revision petition contended that in as much as amendment to the Registration Act providing for Section 17(i)(g) thereunder was brought w.e.f. 01.04.1999, it cannot have retrospective effect to affect the agreement for sale relied on by him. It is further contended that, even Article 47-A of Indian Stamp Act,1899, as applicable to the State of Andhra Pradesh, in respect of agreements of this nature, did not apply, since it was introduced, in the year 1986. Attempt is also made to explain as to what is an 'instrument' in terms of Section 2 of the Indian Stamp Act,1899 in this context, on behalf of the petitioner.
7. On behalf of the respondents, the learned counsel, contended that the document in question has recitals making out that it is a completed sale transaction though bears the title as, an agreement for sale. Drawing attention of this Court of such recitals, it is contended for the respondent that, being a sale document, referring to completed transaction relating to transfer of right, title and interest to the purchaser by the seller, it is not admissible in evidence, even otherwise under Section 17(i)(b) of the Registration Act.
8. Now the point for determination is- "Whether the alleged possessory agreement for sale relied on by the petitioner suffers from such deficiency pointed out for the respondents?
MVR,J CRP.No.4910 OF 2016 3 POINT:-
9. Referring to Section 17(i)(g) of Registration Act,1908 as applicable to agreement for sale, it is pointed out for the petitioner that date of entering into agreement for sale should be taken into consideration in this respect.
10. It is true that Section 17(i)(g) of the Registration Act,1908 has come into effect on 01.04.1999 as applicable to State of A.P. It did not have any retrospective operation. When the alleged possessory agreement of sale, relied on by the petitioner, is considered at its face value, the objection of the respondents in this context, cannot stand. Similarly, Article 47-A of the Indian Stamp Act,1899 as applicable to State of Andhra Pradesh, does not apply to this agreement for sale, since amendment to Schedule 1A of the Indian Stamp Act in this context was brought into effect by the State of Andhra Pradcesh w.e.f. 16.08.1986. Therefore, the objections raised on behalf of the respondents cannot stand.
11. However, on behalf of the petitioner, reliance is placed in Gomuguntla Leela Krishna Murtghy v. Kancherla Koteswaramma and another1 and judgment of High court of Delhi in Vinod Kumar & another vs Ajit Singh, in I.A.No. 20617/2012 in CS (OS) 2661/2012, dated 01.10.2013, in respect of application of Section 17(1A) of the Registration Act and Article-23A of Schedule 1A of Indian Stamp Act (Delhi Amendment Act, 2001).
12. However, it is pointed out for the respondents that recitals of this possessory agreement for sale an important in deciding its 1 .2019(5) ALD 2 (AP) MVR,J CRP.No.4910 OF 2016 4 nature. Thus, it is contended that it is an out and out sale deed, whereby right, title and interest have been conveyed to the purchaser. Therefore, according to the respondent, it is inadmissible in evidence in terms of Section 17(i)(b) of the Registration Act. Thus, it is contended that it cannot merely be treated as an agreement for sale coupled with delivery of possession. Reliance is placed in this context in Banguru Ramathulasamma vs. Yedem Masthan Reddy and others 1998(4) ALT 796.
13. The ruling relied on for the respondents, refers to similar situation. Reliance is placed therein in the case of Kasinath Bhaskar vs. B. Vishweshwar2, observing in Para-6 as under:
"The disputed document in that case was a mortgage deed. While referring to the provisions of Section 17 of the Act their Lordships of Supreme Court have observed in paragraph 16 after referring to the observations made by S.D.Mullah in his commentary as follows:
"We agree with Sir Dinsha Mulla at P.86 of the 5th Edition of his Indian Registration Act that 'If the document itself creates an interest in immoveable property, the fact that it contemplates the execution of another document will not exempt it from registration under this clause.' As we have seen, this document of itself limits or extinguishes certain interests in the mortgaged property. The operative words are reasonably clear. Consequently, the document is not one which merely confers a right to obtain another document. It confers the right only in certain contingencies, namely, 'if you so wish' or 'if necessity may arise'. Its purport is to effect an immediate alteration to effect an immediate extinguishment and limitation. Clause (10) merely confers an additional right, namely the right to obtain another document 'if you so wish' or 'if necessity may arise'. Therefore, the document in question is not one which merely creates a right to obtain another."
It is clear from such observations made by their Lordships of the Supreme Court that when the disputed document of itself limits or extinguishes certain interests in the property and when such document is not one which merely confers right to obtain another document, the effect of such document is immediate extinguishment of the rights of the executant in the property and conferring such right in favour of the person in whose favour the document is executed, and such document is compulsorily registerable as it is not a document which merely creates a right to obtain another document. It is further observation in paragraph 17 of the judgment that an agreement to sell or any agreement to transfer at some future date is to be distinguished 2 .AIR 1952 SC 153 MVR,J CRP.No.4910 OF 2016 5 because such document does not by itself purport to effect transfer and it merely embodies in present agreement to execute another document in future which will, when executed, have that effect. Such a document which merely contemplates execution of another document does not have the effect of extinguishment or limitation of the rights of the executant under that document. It is clear from the observations made by their Lordships of the Supreme Court that if a disputed document does not by itself extinguish the rights of the vendor and does not confer such rights in the vendee, it is to be considered only as an agreement of sale and that if on the other than the rights of the vendor are extinguished and such rights are conferred in favour of the vendee under that document itself is not a document which merely creates a right to obtain another document which when executed alone will create rights in favour of the vendee."
14. As seen from the order under revision, it appears that, the question of treating the possessory agreement for sale in the presence of its recitals as a sale deed was not considered. The objection considered by the learned trial Judge is confined with reference to admissibility or otherwise of the possessory agreement for sale in terms of Section 17(i)(g) of the Registration Act. In such circumstances, though reliance is placed by the learned trial Judge in Yarramreddy Chandra Reddy vs. Thumma Kaspa Reddy and another3, it is desirable that an opportunity be given to both the parties to be heard in respect of this objection raised on behalf of the respondents in the revision petition and, thereupon, decide admissibility or otherwise of this possessory agreement for sale relied on for the petitioner.
15. Therefore, the matter has to be remitted to the trial Court for consideration again in this respect. Consequently, the order under revision has to be set aside.
16. In the result, the Civil Revision Petition is allowed setting aside the order of learned Family Judge-cum-XII Additional District Judge, Guntur dated 29.03.2016 in O.S.No.190 of 2012. The matter is .2015(6) 3 ALD 107 MVR,J CRP.No.4910 OF 2016 6 remitted to the trial Court for fresh consideration to consider the nature of possessory agreement for sale relied on for the petitioner (plaintiff), if reflects a completed sale transaction amenable for registration under Section 17(1)(b) of the Registration Act, 1908 and if it falls within the scope of exceptions envisaged under Section 49 of the Registration Act,1908. The learned trial Judge is directed to consider only the above aspect and shall not take into consideration whatever observations recorded in his order dated 29.03.2016 in this context. No costs. Pending petitions, if any, shall stand closed.
__________________________________ JUSTICE M.VENKATA RAMANA Dt:18-11-2019 RRR MVR,J CRP.No.4910 OF 2016 7 HON'BLE SRI JUSTICE M.VENKATA RAMANA CIVIL REVISION PETITION No.4910 of 2016 DATE: 18-11-2019.
RRR