Andhra HC (Pre-Telangana)
Penkey Suryakantham vs Shaik Sillar on 9 April, 2003
Equivalent citations: 2003(4)ALD61
Author: B. Seshasayana Reddy
Bench: B. Seshasayana Reddy
ORDER
1. This Civil Revision Petition is directed against the order dated 8-2-2000 passed in O.S. No. 313 of 1998 on the file of Principal Junior Civil Judge, Ramachandrapuram, whereby the learned Junior Civil Judge sustained the objection raised by the respondent/defendant in respect of the disputed document dated 19-11-1993 and endorsement thereon dated 25-9-1995 and held that the document can be admitted in evidence on payment of deficit stamp duty and penalty and that the disputed document is sale and it comes within the purview of explanation (1) of Article 47-A Indian Stamp Act.
2. The facts of the case in brief giving raise to filing of this Civil Revision Petition by the plaintiff are as follows:
The respondent/defendant is the owner of the suit schedule land. The plaintiff filed O.S. No. 313/98 alleging that the respondent/defendant executed agreement of sale dated 19-11-1993 agreeing to sell the suit land for Rs. 36,400/- and received Rs. 29,400/- as advance sale consideration on the date of agreement itself and that he paid the balance sale consideration of Rs. 7,000/- on 25-9-1995 and got the payment endorsed on the agreement of sale. Since the respondent/ defendant failed to execute the registered sale deed, the plaintiff filed the suit for specific performance. The respondent/ defendant disputed the agreement of sale. It is the case of respondent/defendant that the husband of the plaintiff took the suit land on lease in the year 1993 on a makta of 15 bags of paddy per year and that the plaintiff to knock away the property fabricated the agreement of sale and filed the suit.
3. When the agreement of sale is sought to be marked through the evidence of P.W.I, the respondent/defendant raised objection that the agreement of sale is a deed of conveyance and it requires stamp duty under explanation (1) to Article 47-A of the Stamp Act. On hearing the Counsel for both the parties, the learned Principal Junior Civil Judge held that the suit agreement is a conveyance deed and it comes within the ambit of explanation (1) to Article 47-A of Stamp Act and it cannot be admitted in evidence till deficit stamp duty and penalty is paid. Feeling aggrieved by the order, the plaintiff filed this Civil Revision Petition.
4. When the matter came up before Justice P.S. Narayana, a question arose, whether Article 47-A as amended by A.P.Act 21/98 is retrospective or prospective and whether the said amendment Act is applicable even when the documents came into existence prior to the Act. His Lordship after referring decisions of this Court in Mekapathula Linga Reddy v. Durgempudi Gangi Reddy and Anr., 1995 (1) ALT 828 and Ramachandra Rao v. Venkata Ramana, 1996 (3) ALT 725, felt that an authoritative pronouncement is required by a Division Bench on the following issues:
(1) Whether Article 47-A as amended by A.P. Act No. 21/95 is retrospective or prospective and whether the said Amending Act is applicable even to the documents which came into existence prior to the Act?
(2) What will be the effect of the amended provisions if any endorsements relating to delivery of possession are made in the principal documents which are subsequent to the said Act coming into force?
When the matter came up before a Division Bench of this Court, it was represented that explanation to Article 47-A of Schedule-1 (A) of the Stamp Act, 1899 was introduced by way of Amendment Act No. 17/86 to the Stamp Act of 1899 with effect from 16.8.1996. In view of the representation, the Division Bench opined that the reference does not survive to be answered as the issue does not call for any opinion and accordingly directed the Registry to place the matter before the single Judge for hearing on merits. Thus, the matter came up before me for final hearing.
5. Learned Counsel for the petitioner contends that the Court below erred in holding that the agreement dated 19-11-1993 is a deed of conveyance within the purview of Schedule 1-A, Article 47-A Explanation and so stamp duty and penalty are to be paid on the document to be admitted in evidence. He further contends that the duty below ought to have seen that as per the plaint averments the delivery of possession was only on lease and not pursuant to the agreement of sale dated 19-11.1993. It is further contended by him that the Court below ought to have seen that it was never the defence of the respondent that he delivered possession to the petitioner pursuant to the agreement of sale. The respondent despite receiving notice did not choose to contest the case.
6. The point that fell for consideration is: Whether the agreement of sale dated 19-11-1993 falls within the purview of explanation to Article 47-A of Stamp Act.
7. The explanation to Article 47-A of Stamp Act reads as follows:
"An agreement to sell followed by or evidencing delivery of possession of the property agreed to be sold shall be chargeable as a "sale" under this article and the instrument of sale in pursuance of such agreement subsequently executed shall be chargeable with a duty of rupees five".
It is also useful to refer proviso to Article 20 of the Stamp Act, which reads as follows:
"Provided that where an agreement to sell an immovable property is stamped with the advalorem stamp required for a conveyance on sale under Article 47-A and a conveyance on sale in pursuance of such agreement is subsequently executed, the duty on such conveyance on sale shall be the duty payable under the Article less the duty already paid under Article 47-A subject to a minimum of five rupees."
8. It is manifest from the explanation to Article 47-A of Stamp Act that where delivery of possession of the property is effected under the agreement of sale or evidencing delivery of possession of the property agreed to be sold is chargeable as a sale under this Article. It is the contention of the petitioner/ plaintiff that the petitioner came into possession of the property as a tenant, but not as an agreement holder and therefore the explanation to Article 47-A does not attract. The Court below considered the endorsement on the agreement of sale dated 19-11-1993 and held that the delivery of possession is in pursuance of the agreement of sale and therefore it is to be construed as a conveyance falling within the purview of explanation to Article 47-A of Stamp Act. I have gone through the copy of the agreement of sale which has been filed along with the material papers. On a reading of the agreement of sale, there cannot be any difficulty to conclude that the petitioner/plaintiff was not put in possession of the property as on the date of the agreement of sale. The agreement reads as follows:
"The schedule land in Amujuluru Village was gifted to me under registered gift deed dated 26-7-1989 by my sister Shaik Khasim Beebee and this deed was registered before the Sub-Registrar, Draksharamam. Since then I have been in possession and enjoyment thereof with absolute rights. As it is not of use to me, I offered to sell it and you offered a high sum of money and so I agreed to sell it to you. I have received Rs. 29,400/- (Rupees Twenty nine thousand four hundred only) today from you. The balance of Rs. 7000/-you have to pay by 5.4.1994 and you have to obtain sale deed from me or my representatives at your expense on proper stamp paper either in your name or on your behalf in any other persons name.
Sd/
-(Signature in Urdu) On reverse of stamp paper the following is written :
On 25.9.1995, I acknowledge, receipt of the balance amount of Rs. 7,000/- payable under this agreement paid within the time specified under the agreement. The property is in your possession. Whenever you so desire, I or my representatives shall execute a registered document without causing any problems to you. WITNESS:
1. Sd/-Nunna Venkata Subbaramudu
1. Sd/- (inUrdu)
2. Sd/- Devarapalli Venkateswara Rao
2. Sd/- (in Urdu) Scribe Sd/- Velampalem"
9. As seen from the above endorsement, the petitioner came into possession of the property subsequent to the date of agreement. The question is whether the petitioner came into possession of the property in pursuance of the agreement of sale or independent of the agreement of sale. If the petitioner obtained the possession of the property independent of the agreement of sale, the agreement of sale stands outside the purview of explanation to Article 47-A of Stamp Act. The petitioner pleaded at para (4) of the plaint that he came into possession of the property as a tenant. I feel it apposite to refer the relevant portion of plaint and it is thus:
"4. The plaintiff could not pay the balance amount of Rs. 7000/- by 5.4.1994 as per terms of the agreement. The defendant agreed to extend time for a further period of one year. Thereafter, the plaintiff paid Rs. 7,000/-the balance sale consideration. Accordingly, the defendant made an endorsement to that effect on the back of the agreement on 25.9.1995. Thus the entire sale consideration was paid by 25.9.1995. Thereafter, the defendant could not execute the regd. sale deed in favour of the plaintiff and delivered the land to the plaintiff. On that the plaintiff demanded the defendant to pay interest on 36,400/- from 25.9.1995 till the defendant execute the regd. sale deed and deliver the possession to the plaintiff. So the matter was referred to the mediators and the mediators who were present at the time of payment of Rs. 7,000/- to the defendant by the plaintiff intervened and advised the defendant if there is any difficulty for the defendant to execute a sale deed in favour of the plaintiff he could lease the schedule land to the plaintiff till then and the plaintiff can appropriate the income on the land towards interest on Rs. 36,400/- till the defendant execute the regd. sale deed in favour of the plaintiff and deliver the possession to the plaintiff as a owner. The defendant failed to express his difficulty for not executing the regd. sale deed in favour of the plaintiff and delivered the land to her in pursuance of the sale deed. So finally agreed to lease the land to the plaintiff. Accordingly, the schedule land was leased to the plaintiff. Thus the plaintiff is in possession and enjoyment of the schedule land as tenant till she becomes owner of the schedule land. In pursuance of the said compromise the plaintiff is cultivating the land as a tenant from October, 1995 till now and appropriating the income on the land towards interest on the defendant. The plaintiff has been demanding the defendant to execute the regd. sale deed in favour of plaintiff at her expenses. But the defendant is procrastinating. The value of the lands are being increased day by day abnormally. Therefore the plaintiff reliably learnt that the defendant is trying to dispose of the land to others for a higher value which is not permissible under law. The plaintiff is ready and willing to perform her part of the contract and he is ready to obtain regd. sale deed from the defendant."
10. It is explicit from the plaint pleadings that the petitioner/plaintiff came into possession of the land as a tenant and not as an agreement holder. The respondent/ defendant filed the written statement disputing the very agreement of sale itself. It is the case of the respondent/defendant that the husband of the petitioner/plaintiff is a cultivating tenant of the plaint schedule land and he was inducted into the possession of the said property in the year 1993, on a makta of 15 kata bags of paddy per year and he has been continuing as a cultivating tenant.
11. It is useful to extract para 9 of the written statement of the defendant for better understanding of the plea set up by him and it is thus:
"9. The husband of the plaintiff by name Penke Annvaram is a cultivating tenant of the plaint schedule property and he was inducted into the possession of the said property in the year 1993, for a makta of 15 kata bags of paddy per year and he has been continuing as a cultivating tenant. The husband of the plaintiff with intent to grab the plaint schedule property created the alleged suit agreement and got filed this suit through the plaintiff. This defendant filed an A.T.C.43/97 on the file of the Tenancy Tribunal for eviction and the same is pending. After one year of filing of this A.T.C., the plaintiff and her husband Penke Annavaram designed a plan and created the alleged suit agreement with the help of the attestors of the agreement. This defendant got issued a suitable reply to the notice issued by the plaintiff prior to filing of the A.T.C. This defendant got issued a legal notice to the husband of the plaintiff to pay the arrears of makta but he refused to take the notice and hence the notice was returned. This defendant is also ready to file a civil suit for recovery of the said arrears of makta."
12. It is the case of neither the petitioner/plaintiff nor the respondent/ defendant that the possession of the suit schedule property was delivered to the petitioner/plaintiff under the agreement of sale. Therefore, even the terms of the agreement of sale did not indicate that possession has been delivered to the petitioner/plaintiff either on the date of agreement of sale or on any subsequent date in pursuance of the agreement of sale. Therefore, the suit agreement stands outside the scope of explanation to Article 47-A of Stamp Act. The Court below failed to note the pleadings of both parties and misread the agreement of sale and endorsement thereon and thereby came to erroneous conclusion that the suit agreement of sale comes within the purview of explanation to Article 47-A of Stamp Act. I may also add that the petitioner/plaintiff prayed for the relief of possession in the suit. If he was put in possession of the property either on the date of agreement of sale or on any subsequent date in pursuance the agreement of sale, there was no need for him to seek the relief of possession. The very fact that he sought for relief of possession indicates that he was not put in possession of the property either as on the date of agreement of sale or on any subsequent day in pursuance of the agreement of sale.
13. In the result, the Civil Revision Petition is allowed setting aside the impugned order dated 8-2-2000 passed in OS. No. 313 of 1998 on the file of Principal Junior Civil Judge, Ramachandrapuram and consequently the disputed document dated 19-11-1993 is ordered to be admitted in evidence. No costs.