Andhra HC (Pre-Telangana)
Jannuchander Babu vs Manchikatla Satyanarayana And Ors. on 9 December, 2002
Equivalent citations: 2003(2)ALD640, 2003(6)ALT589
JUDGMENT C.Y. Somayajulu, J.
1. Revision Petitioner filed O.S. No. 1122 of 2001 for injunction restraining the respondents and their men from interfering with his possession over 230 Sq.Yds. in S.No. 296 of Desaipet village, specified in the boundaries mentioned in the Schedule appended to the plaint, which hereinafter would be referred to as "the suit land", and filed IA No. 1372 of 2001 therein seeking an injunction, during the pendency of the suit, restraining the respondents and their men from interfering with his possession over the suit land. The contention of the respondents is that they purchased the suit land and its adjacent land from the revision petitioner and others and that they, but not the revision petitioner, are in possession of the suit land. Exs.P.1 to P.4 on behalf of revision petitioner and Ex.R.1 on behalf of respondents were marked during enquiry. Both the Courts below concurrently held that revision petitioner is not entitled to the injunction sought. Hence this revision.
2. The contention of Sri J. Nataraja Sarma, learned Counsel for the revision petitioner, is that the failure of the Courts below in marking the receipt produced by the revision petitioner acknowledging receipt of entire balance sale consideration from the revision petitioner, which also incidentally contains a recital regarding delivery of possession of the suit land, on a wrong assumption that it is not properly stamped as a sale deed as per Article 47-A of Schedule 1-A of the Stamp Act, without keeping in view the fact that under the Stamp Act it is the instrument but not the transaction that is amenable to stamp duty. Placing strong reliance on the passage in para-10 of a Division Bench decision of this Court in B. Ratnamala v. G. Rudramma, (DB) reading:
"In Mekapothula Linga Reddy, 1995 (2) ALT 828, the learned single Judge sought to derive support for his conclusion as regards the applicability of stamp duty under Article 47-A of Schedule 1-A of the Act from Section 53-A of the Transfer of Property Act. As already pointed, one need not look to an provision in other Acts especially in the interpretation of fiscal statutes like the Indian Stamp Act. In any case, Section 53-A of the Transfer of Property Act cannot have any direct hearing on the question at issue. The scope of Section 53-A of the Transfer of Property Act is altogether different. It contemplates protection to a transferee in possession which varies from case to case."
He contended that the various observations, and the ratio in Mekapothula Linga Reddy (supra) rendered by a learned single Judge should be deemed to have been either not approved or watered down by the said Division Bench decision.
3. B. Ratnamala case (supra) was referred to a Division Bench by a learned single Judge of this Court in view of the conflict between M.A. Gafoor v. Mohd. Jani and Ors., , and Mekapothula Linga Reddy (supra). The point for consideration in both those decisions was the applicability of Article 47-A of Schedule 1-A of Stamp Act to an agreement of sale. In Mekapothula Linga Reddy (supra) the agreement of sale, was executed on a stamp paper worth Rs. 20/-. After paying the balance due from him to the vendor as per the agreement, the purchaser took possession of the property agreed to be sold and obtained an endorsement to that effect on the reverse of the agreement. Answering the question whether such endorsement of delivery of possession need be stamped as a sale deed as contemplated by Article 47-A of Schedule 1-A of Stamp Act in the affirmative, a learned single Judge held that Article 47-A is not confined to cases of delivery of possession immediately on execution of the agreement of sale, and would also cover cases where possession was delivered subsequent to the agreement of sale. The facts in M.A. Gafoor case (supra) are a little different. In that case a tenant in possession of the property entered into an agreement to purchase the same and obtained an agreement with a recital that he would pay rent to the vendor till the agreement of sale culminates into a deed of sale. Answering the question whether such agreement also need be stamped as a sale deed as per Article 47-A of Schedule 1-A of the Stamp Act, a learned Single Judge held that Article 47-A of Schedule 1 -A of Stamp Act would apply only to cases of an agreement under which there is 'transfer of possession' from the vendor to the vendee and if there is no 'transfer of possession of the property agreed to be sold as in case where the vendee was already in possession of the property as a tenant, such agreement need not be stamped as a sale deed as per Article 47-A of Schedule-1A of Stamp Act. That decision in M.A.Gafoor case (supra) was overruled by a Division Bench in B. Ratnamala case (supra) holding that the expression "followed by" in Article 47-A of Schedule 1-A of Stamp Act should be read in conjunction with "agreement", and as such any agreement of sale recording 'delivery of possession' would invite stamp duty as sale deed eventhough there is no 'actual transfer of possession', as in the case of a tenant continuing in possession of the demised premises even after agreement of sale. Though the Division Bench did not agree with the reasoning in Mekapothula Linga Reddy case (supra), it did approve the ratio in that decision that Article 47-A of Schedule 1-A of Stamp Act would apply to cases of recording delivery of possession of the property agreed to be sold subsequent to agreement of sale if such delivery of possession is "in pursuance of" the agreement to sell. It is pertinent to note that in Mekapothula Linga Reddy case (supra), the learned Judge referred to the Statement ofObjects and Reasons of the Bill introducing Article 47-A of Schedule 1-A of Stamp Act, that amendment is being made in order to provide payment of Stamp duty on agreements to sell at conveyance rate, when they are accompanied by delivery of possession of the property as parties are not getting the sale deeds registered by paying legitimate stamp duty.
4. While approving that view the Division Bench clearly held that whenever a document contains a recital that "possession" is given to, or "retained with" the purchaser, "in pursuance of an agreement of sale", such document is amenable to stamp duty as a sale deed as per Article 47-A of Schedule 1-A of Stamp Act. If the contention of the learned Counsel for the revision petitioner that a receipt evidencing payment of balance due under the agreement of sale containing a recital that possession of the property agreed to be sold earlier was delivered, need not be stamped as a sale deed as contemplated by Article 47-A of Schedule 1-A of Stamp Act, is accepted, the object of amending Schedule 1-A of Stamp Act by introducing Article 47-A would be frustrated, because agreements of sale without containing a recital relating delivery of possession can be executed on one day and on the very next day receipts evidencing payment of balance amount due under the agreement can be passed contains a recital that possession was delivered on receipt of the balance of sale consideration. It is only with a view to avoid such practice Schedule 1-A of Stamp Act was amended. In fact in Ratnamala case (supra) the Division Bench in para-10 of its Judgment, subsequent to the passage relied on by the learned Counsel for the revision petitioner extracted in para-2 above, held:
"Excepting to this extent, the conclusion arrived at by the learned Judge cannot be faulted, as the delivery of possession has been endorsed on the document therein which falls within the second limb of the explanation."
'Second limb' of the explanation to Article 47-A of Schedule 1-A of Stamp Act is "followed by delivery of possession", after drawing support for its view from the decision of the Supreme Court in Veena Hasmukh Jain v. State of Maharashtra, , and observed as follows:
"Thus the apex Court had approved the intention of the Legislature in equalising an Agreement on par with a conveyance in the circumstances contemplated there under, apparently, the object being to realize the revenue at the earliest point of lime on the Agreements akin to sale deeds though in different words, in the instant case, the amendment brought in tries to achieve a similar object."
5. Therefore, both the Courts below refusing to receive the receipt containing a recital recording delivery of possession of property agreed to be sold on the ground that it is not stamped as a sale deed as contemplated by Article 47-A of Schedule 1-A of Stamp Act, cannot be said to be erroneous. In all cases where a document contains a recital recording delivery of possession of property in pursuance of an agreement of sale, whether by way of an endorsement on the reverse of the agreement, or under a separate receipt, it has to be stamped as a sale deed as contemplated by Article 47-A of Schedule 1-A of Stamp Act.
6. The contention that a document evidencing receipt of money need be stamped only as a receipt in spite of the fact that it contains a recital recording delivery of possession of property in pursuance of an agreement of sale, cannot be accepted in view of Sections 5 and 6 of Stamp Act. As stated earlier since an agreement of sale "followed by" or "evidencing delivery of possession" of property agreed to be sold, is chargeable as a sale deed, as per Article 47-A of Schedule 1-A of Stamp Act, a document evidencing receipt of the balance of sale consideration due and payable as per the agreement, coupled with a recital recording delivery of possession of property agreed to be sold, also has to be stamped as a sale deed. In view thereof the contention that collecting stamp duty on a document [receipt] containing a recital recording delivery of possession of property subsequent to the agreement of sale, in cases where the possession of the property is not delivered on the date of agreement of sale, tantamounts to collecting stamp duty on the 'transaction' but not the 'instrument' has no force.
7. Since both Courts concurrently found that revision petitioner failed to establish prima facie case and that the balance of convenience is not in his favour, I find no grounds to admit this revision petition and hence the revision is dismissed. No costs.