Andhra HC (Pre-Telangana)
Sardar Ram Singh vs Sardar Ram Singh And Anr. on 15 September, 2003
Equivalent citations: 2004(4)ALD735, 2004(6)ALT217
ORDER T. Ch. Surya Rao, J.
1. This civil revision petition is directed against the order dated 2.5.2003 passed by the learned n Additional Senior Civil Judge, Warangal, in I.A. No. 253 of 2003 in O.S. No. 134 of 2003.
2. The revision petitioner is the plaintiff who filed the suit for specific performance of the contract of sale. He filed a concomitant petition in I.A. No. 253 of 2003 under Order 39, Rules 1 and 2 of the Code of Civil Procedure seeking temporary injunction pending disposal of the suit to restrain the first respondent from alienating the suit schedule property to the second respondent or to any third party. At the time of enquiry in the suit, four documents came to be marked on the side of the petitioner-plaintiff. The second respondent sought to mark the document known as "Agreement of Sale" so as to buttress his contention that the first respondent agreed to sell the property under the said agreement to him. An objection was taken for introducing the said document. The objection was two fold - firstly the document could not be marked as it was insufficiently stamped; and secondly the document required registration under Section 17(g) of the Registration Act and, therefore, for want of registration it was not admissible.
3. A perusal of the document in question dated 17.1.2003 shows that it is an agreement of sale. It has been recited inter alia in the document that out of the total consideration of Rs. 1.25 lakhs as fixed between the parties, an amount of Rs. 1 lakh has been paid and the balance amount of Rs. 25,000/- shall have to be paid at the time of registration or at the time of delivering the possession of the property. The parties further agreed that the instrument shall have to be executed and registered after obtaining all the necessary permissions. These things are contained in Clauses (2) and (3) as set forth under the document in question. A perusal of both these clauses leaves no room for any doubt that the parties contemplated to get a regular conveyance deed executed and registered after obtaining all the necessary permissions from the concerned authorities. Therefore, the transaction per se is an agreement of sale but not an out and out sale. Possession has not been delivered under the document as the parties contemplated the delivery of possession at a later point of time and to pay the balance consideration of Rs. 25,000/-at that time.
4. Having regard to the nature of the document and the recitals contained therein, it is now sought to be canvassed before me that the recitals attract the Article 6(B) of Schedule 1-A of the Indian Stamp Act and, therefore, obviously the document is not sufficiently stamped inasmuch as it was admittedly stamped in accordance with the Article 6(A) thereof. Article 6 of the Schedule 1-A of the Indian Stamp Act is the relevant Article, which deals with the agreement or memorandum of an agreement not otherwise provided for. Clause (A) thereof gives the ad valorem basis for affixing the stamp on the instrument. However, Clause (B) thereof pertains to a purpose which is different than Clause (A). For brevity and better understanding of the matter, it is expedient to excerpt Clause (B) of Article 6 of the Schedule 1-A of the Indian Stamp Act as under:
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Description of Instrument Proper Stamp Duty
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6. Agreement or Memorandum of agreement--
(B) If relating to construction Five rupees for every hund-
of a house or building including red rupees or part thereof
a multi-unit house or building on the market value or the
or unit of apartment/flat/portion estimated cost of the proposed
of a multi-storied building or for construction/development of
development/sale of any other such property as the case
immovable property. may be, as mentioned in the
agreement or the value
arrived at in accordance with
the schedule of rates
prescribed by the Public
Works Department Authorities,
whichever is higher.
5. A perusal of the said provision, in my considered view, pertains to the transaction of construction of a house or building or flat or development/sale of any other immovable property. The purpose is the same is either case. Therefore, it must pertain to a transaction of sale of a house, or sale of any other immovable property for the purpose of development for constructing any multi-unit house or building or unit of apartment/flat/portion of a multi-storied building. That transaction is entirely different from a simple transaction of agreement pertaining to an immovable property. Be it a house or any other immovable property, in my considered view, Clause (B) has no application to the present transaction as rightly held by the learned lower Court.
6. Apropos the second objection on the point of registration, it is appropriate to consider the proviso to Section 49 of the Registration Act. The said proviso reads as under:
"49. Effect of non-registration of documents required to be registered:................................
Provided that an unregistered document affecting immovable property and required by this Act, or the Transfer of Property Act, 1882 to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or as evidence of part performance of a contract for the purposes of Section 53-A of the Transfer of Property Act, 1882, or as evidence of any collateral transaction not required to be effected by registered instrument."
7. A mere perusal of the said proviso shows that an exception is carved out from the rigor of Section 49 which ordains that the document which is required to be registered under Section 17 of the Registration Act shall not be received as evidence of any transaction affecting such property or conferring such power unless it has been registered. The exception applies to three categories, namely, (i) the document may be received as evidence of a contract in a suit for specific performance; (ii) as evidence of part performance of a contract for the purpose of Section 53-A of the Transfer of Property Act, 1882; and (iii) as evidence of any collateral transaction not required to be effected by registered instrument. In respect of these three categories of transactions, notwithstanding the fact that the document which is required to be registered has not been registered and, therefore, shall not be received as evidence, can be received as evidence.
8. Here is a case where the document in question is an agreement of sale and sought to be relied upon as a defence in an application filed for injunction to restrain the party thereof from interfering with the alleged possession of the plaintiff. The defence taken in such action appears to be that the propounder of the document has purchased the property under a contract of sale and, therefore, he is in possession. Having regard to the competing claims, it is obvious that the document in question attracts either Clause (1) or (2) of the proviso to Section 49 of the Registration Act and, therefore, the document in question can be received as evidence by the Court.
9. The learned Counsel appearing for the revision petitioner seeks to place reliance upon the judgment of this Court rendered by a Single Judge in Ummadi Subramanyam v. Ukka Dhanamma and Anr., . The judgment sought to be relied upon is of no assistance to the learned Counsel. That is a case where the document in question is a regular sale deed. What has been considered by this Court in that case is that the document which has not been stamped properly shall have to be impounded by the Court, and after levying the necessary stamp duty and penalty, it can be received as evidence. The procedure for such impounding the document has in fact been laid down in the Act itself. Therefore, in the instant case, I see no inhibition under law to receive the document in question as evidence in the inquiry. There are no compelling circumstances to persuade this Court to interfere with the impugned order.
10. The civil revision petition, therefore, fails and is dismissed at the threshold. No order as to costs.