Andhra HC (Pre-Telangana)
Khasim Saheb vs S. Hanumanthu on 8 November, 2004
Equivalent citations: 2005(1)ALD596, 2005(1)ALT507
ORDER D.S.R. Varma, J.
1. This Civil Revision Petition, by the plaintiff, is directed against the order, dated 20-10-2003, passed by the Junior Civil Judge, Pattikonda, Kurnool District, in C.F.R. No. 2428 of 2003, in an un-numbered Original suit, insisting for payment of stamp duty and penalty on the suit document, which is an agreement of sale, for registering the plaint, at the time of registration of the plaint as a suit.
2. The facts, as could be seen from the impugned order, are that the petitioner herein had instituted the suit for specific performance of an agreement of sale against the respondent herein on the basis of an agreement of sale dated 17-6-1992. Office of the Court below took an objection as to the maintainability of the suit stating that the suit document i.e., agreement of sate dated 17-6-1992, is a sale deed in the eye of law and not an agreement of sale simpliciter inasmuch as the recitals in the agreement of sale show that the property was delivered to the petitioner/plaintiff along with the agreement and hence the suit cannot be numbered unless the required stamp duty and penalty on the said basic document is paid.
3. The Court below heard the learned Counsel appearing for the petitioner/plaintiff and ultimately directed the Office of the court below to calculate the stamp duty and penalty payable by the petitioner on the suit document dated 17-6-1992 and directed the petitioner to pay the stamp duty and penalty on the suit document within fifteen days from the date of the impugned order making it clear that in case the petitioner fails to pay the stamp duty and penalty within the aforesaid period, the plaint shall stand rejected under Order VII, Rule 11 (d) C.P.C.
4. Aggrieved by the aforesaid order of the Court below, plaintiff preferred this civil revision petition.
5. Heard the learned Counsel for the petitioner. Perused the impugned order as well as the other material papers on record.
6. The Court below, for arriving at the conclusion, as noted in the impugned order, adverted to the decision of a learned single Judge of this Court in T. Gurappa v. Naidu Ramana Reddy and also the decision of another learned single Judge of this Court in Chorumala Kamala v. Samanthapudi Indira . Though the Court below observed that the aforesaid two decisions support the case of the petitioner/plaintiff, the said two decisions cannot be relied upon in view of the Division Bench decision of this Court in B. Ratnamala v. G. Rudramma 1996 (6) ALT 59 (D.B.). So observing, and relying upon the Division Bench decision of this Court in B. Ratnamala's case 1996 (6) ALT 59 (D.B.), passed the impugned order directing the petitioner/ plaintiff to pay stamp duty and penalty on the suit document, as stated supra.
7. At the outset, it must be observed that the decisions of this Court T. Gurappa's case (1 supra) and Chorumala Kamala's case (2 supra) are not at all applicable to the facts and circumstances of the case on hand inasmuch as the facts and circumstances in those are totally different from that of the facts and circumstances in the case on hand.
8. Even though the Court below observed that the aforesaid two decisions of this Court support the version of the petitioner/plaintiff, it relied upon the Division Bench decision of this Court in B. Ratnamala v. G. Rudramma and eventually held that the suit document contains recital of delivery of possession of the property and, therefore, Explanation-I to Article 47 (1) (a) (sic. 47-A) of Schedule 1 -A of the Indian Stamp Act will come into play and the suit document shall have to be treated as a 'sale deed' for the purpose of collection of stamp duty and penalty.
9. In T. Gurapa v. Naidu Ramana Reddy (1 supra), the facts are that the plaintiff therein filed a suit for specific performance of an agreement of sale which was marked as Ex. A-1. The defendant therein raised an objection that the document Ex. A-1 was not an agreement of sale, but it was an outright sale deed in and by the terms of which the property was conveyed and therefore the, document was inadmissible in evidence. The trial Court in that case held that the document was only an agreement of sale and not a sale deed and therefore it is admissible in evidence. Questioning the said order, the defendant therein preferred a revision to this Court.
10. In the aforesaid factual background, a learned Single Judge of this Court (P.L.N. Sharma, J.), was called upon to decide whether the document in that case was a sale deed or an agreement of sale. The learned Judge, in that case, considering the decisions in Hanumantha Rao v. Narayanaprasad 1984 (1) ALT 158 and K. Santhakumari v. K. Suseela Devi , Kashinath Bhaskar v. Bhaskar Vishweshwat and P.M. Unni v. M.J. Nadar AIR 1979 Mad. 4, held that the document in that case was an agreement of sale only and not a sale deed. The learned Judge observed (paragraph -4, at p. 116):
"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 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 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 decision by themselves. When a document is construed, the entire document will have to be looked into for ascertaining the intention of the parties. 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.".
The learned Judge further held:
"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 and a reading of all the recitals in the document leave no doubt that it is an agreement of sale and not an outright sale deed.".
11. Therefore, it is clear that the facts in the aforementioned decision are entirely different from that of the case on hand and hence the decision in T. Gurappa's case (1 supra) is not at all applicable to the facts of the case on hand.
12. The second decision, Chorumala Kamala's case (2 supra), rendered by another learned Judge of this Court (S.R. Nayak, J.) is also not applicable to the facts of the present case. The said decision was rendered by the learned Judge, dealing with the provisions of Schedule 1 -A, Article 6 of the Indian Stamp Act 1899 and the provisions of Section 12 of the Specific Relief Act, 1963. The entire order in that case runs thus:
'There is an error apparent on the face of the order passed by the learned Trial Judge. The suit is for specific performance of an agreement of sale dated 7-11-1994. The learned Judge himself has pointed out in the order under revision that the document dated 7-11-1994 is only an agreement of sale. If that is so, merely because under the agreement of sale the plaintiff was put in possession of the property, that would not entail that he should pay the stamp duty treating it as outright sale deed.
The C.R.P. is allowed. The order under revision is set aside. The learned Trial Judge is directed to receive the plaint and proceed further in accordance with law."
13. It is, therefore, clear that the aforesaid decision in Chorumala Kamala (2 supra) is also not applicable to the facts of the present case.
14. Even the Division Bench decision of this Court in B. Ratnamala v. G. Rudramma (3 supra), which is relied upon by the Court below in passing the impugned order, is not applicable to the facts of the case on hand. That matter arose for consideration before the Division Bench, by way of reference made by a learned Judge of this Court (B.S. Raikote, J.) differing with the view taken by another learned Single Judge of this Court in M.A. Gafoor v. Mohd. Jani and Ors. as to the interpretation of Explanation to Article 47-A of the Indian Stamp Act.
15. The facts in the aforesaid case under reference before the Division Bench (B. Ratnamala's case - 3 supra) are that the plaintiff filed a suit for specific performance of an agreement. That agreement was marked as Ex. A-1 during trial. Thereafter, an objection was taken by the defendant by filing an application seeking to impound the said document and levy stamp duty and penalty as if it is a 'sale deed' under Article 47-A of Schedule I-A of the Indian Stamp Act. The trial Court allowed the said application and overruled the objection taken by the plaintiff as to the permissibility of raising the said objection after marking of the document Under Section 35 of the Indian Stamp Act and held that the document is insufficiently stamped. Consequently, the plaintiff in that case was directed to pay the deficit stamp duty and penalty on the document or otherwise it was held that the document becomes inadmissible in evidence. In that case the document recited that the possession of the property was previously delivered to the vendee and that the entire sale consideration has already been received by the vendor. Aggrieved by the said order of the trial Court in that case, the plaintiff therein filed the revision petition before this Court. When that revision petition came up for admission before B.S. Raikote, J., the learned Counsel appearing for the plaintiff therein, placing reliance on the decision of this Court in M.A. Gaffoor's case (8 supra), contended that the document in question does not attract the provisions of Article 47-A of Schedule 1 -A of the Indian Stamp Act.
16. In M.A. Gafoor's case (8 supra), the suit was filed for specific performance of an agreement of sale, and on the date of the agreement the plaintiff in that suit was a tenant under the defendant therein and as per the agreement the plaintiff therein need not pay rents thereafter and he can also sublet the premises to others. In that factual matrix the learned Judge in M.A. Gafoor's case (8 supra) held that there was no delivery of possession warranting application of the provisions of Article 47-A of Schedule 1-A of the Indian Stamp Act.
17. In the case under reference to the Division Bench, the learned referring Judge (B.S. Raikote, J.) opined that even if there is a recital in the agreement that possession was delivered or it is with the purchaser, it would attract Article 47-A of Schedule 1 -A of the Indian Stamp Act. In view of the difference of opinion, the matter was referred to the Division Bench in B. Ratnamala's case (3 supra).
18. The Division Bench, dealing with the provisions of Schedule 1-A, Article 47-A, Explanation-I of the Indian Stamp Act, adverting to the decisions in - Mekapothula Linga Reddy v. D. Gangi Reddy and Ors. ; Board of Revenue v. Somarazu AIR 1926 Madras 1038 (F.B.); T. Gurappa v. Naidu Ramana Reddy (1 supra); D. Ramachandra Rao v. B. Venkata Ramana ; Veena Hasmukh Jain v. State of Maharashtra , held the decision of this Court in M.A. Gafoor v. Mohd. Jani and Ors (8 supra) does not lay down the correct law. The Division Bench, while answering the reference, held thus:
"While considering the provisions of the Indian Stamp Act, it has to be borne in mind that the said Act being a fiscal statute, plain language of the section as per its natural meaning is the true guide. No inferences, analogies or any presumptions can have any place. As the incidence of duty is on the execution of the deed, regard must, therefore, be had only to the terms of the document. Thus the main question that falls for consideration is the interpretation of the expressions "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 to sell 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 to sell. 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 Explanation I. In the case on hand, there is variation in the expressions used, viz., "followed by" and "evidencing delivery of possession". As discussed above, the expression "followed by" should be read in conjunction with the earlier expression "agreement" and in the latter case, any agreement recording delivery of possession should invite the stamp duty as a sale deed, even though the possession had been delivered in the past. The expression "evidencing delivery of possession" applies to the present case.".
19. From the above, it is clear that the Division Bench decision in B. Ratnamala's case (3 supra) was rendered in a fact-situation where a document was sought to be marked during the trial of the suit after the suit was instituted / registered whereas in the case on hand the document is sought to be filed as the basic suit document along with the plaint.
20. In the present case, the objection was raised by the Court below at the threshold itself, i.e., for registering the plaint as a suit for want of payment of proper stamp duty and penalty on the basic suit document, i.e., the Agreement of sale by treating the same as a sale deed. Therefore, on facts, the decision of the Division Bench in S. Ratnamaia's case (3 supra) is also not applicable to the case on hand inasmuch as that decision deals with a situation where objection was raised by the defendant regarding the admissibility of a document during the course of trial of the suit, whereas it is not so with the case on hand.
21. Learned Counsel appearing for the petitioner in this case relies upon the decision of a learned Single Judge of this Court (V. Bhaskar Rao, J.) in Link Well Electronic Ltd. v. A.P.E.D.C. Ltd. 1997 (2) An. W.R. 42 = 1997 (3) ALD 336 to buttress his submission that the plaint cannot be rejected on the mere ground of non-payment of deficit stamp duty payable on a document filed along with the plaint and that such a question can be considered only when the document is sought to be tendered in evidence.
22. The learned Judge, in the above case, while considering the provisions of Order VII, Rules 1 and 2 C.P.C., held at paragraph-5 of the said Judgment, as under:
".........It is well settled that the question of payment of deficit stamp duty on any document will arise only at the stage of evidence and that too when the document is sought to be tendered in evidence. It is another thing that the office may at any stage examine the documents filed by the parties and necessary steps may be initiated to put the parties to notice that a particular document is not sufficiently stamped or that it requires stamp duty and penalty etc., but the stage for collecting the deficit stamp duty will definitely arise only when the document is sought to be tendered in evidence.".
23. Now it is absolutely clear that there is a vital distinction between the Division Bench decision B. Ratnamala's case (3 supra) relied on by the trial Court and the decision of the learned Single Judge in Link Well Electronic Ltd. v. A.P.E.D.C. Ltd. (13 supra) relied on by the counsel appearing for the petitioner in this revision petition. In my considered view the decision of the learned single Judge of this court in Link Well Electronic Ltd v, A.P.E.D.C. Ltd. (13 supra) applies, in all fours, to the facts of the case on hand.
24. However, it is to be noted that the decision in Link Well Electronic Ltd. v. A.P.E.D.C. Ltd. (13 supra) was not brought to the notice of the court below. Had this decision been pressed into service by the petitioner/plaintiff before the Court below, the order of the Court below, in all probability, would have been different.
25. Following the decision of this Court in Link Well Electronic Ltd. v. A.P.E.D.C. Ltd. (13 supra), this revision petition deserves to be allowed and the impugned order deserves to be set aside.
26. In the result, this revision petition is allowed and the impugned order is set aside. Consequently, the objection raised by the Court below shall stand over-ruled and the Court below is directed to register the plaint as a suit and proceed further in accordance with law. There shall be no order as to costs.